COURT OF APPEALS DECISION DATED AND FILED February 2, 2010 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
from an order of the circuit court for
Before
¶1 PER CURIAM. William Dieman appeals an order denying his motion for revision of that part of a supplemental divorce judgment awarding $1,200 in monthly spousal maintenance to Karen Anderson. Dieman argues that because the circuit court did not find his retirement decision both voluntary and unreasonable, it erred by considering his earning capacity to deny the motion. We agree and, therefore, reverse the order and remand the matter to the circuit court for further proceedings.
Background
¶2 Dieman and Anderson divorced in May 2003 after thirty-one
years of marriage. Dieman’s retirement
and pension accounts were divided by qualified domestic relations orders, and
Discussion
¶3 Under Wis. Stat. § 767.59(1k)
(2007-08),[1]
the circuit court may revise a maintenance order if there has been a
substantial change in the parties’ financial circumstances. We review a circuit court’s decision to
modify maintenance, including the decision whether there is a substantial
change in circumstances, as a discretionary decision. Cashin v. Cashin, 2004 WI App 92,
¶44, 273
¶4 A circuit court may consider earning capacity when
determining a maintenance obligation if it finds a spouse’s job choice both
voluntary and unreasonable.
¶5 At the motion hearing, Dieman testified regarding his decision to retire. Specifically, Dieman explained that he suffered from lower back problems, arthritis and Lyme’s Disease, and his back condition was becoming progressively worse with his “in and out of the bucket and bouncing around in the truck all the time.” When asked why, given his various ailments, Dieman had not elected to retire earlier, he explained the retirement date was selected based upon his employer’s “rule of 90”—the point at which his years of service and his age together would total 90.
¶6 According to Dieman, once the rule of 90 is reached, an employee is entitled to retire with full benefits and the company stops making contributions to the employee’s pension plan. Dieman stated that because the company was going to stop contributing to his pension, there was “not a lot of benefit to working longer … and … with my ongoing health problems, it would be good to do something not as stressful, physically demanding on your body.” Dieman further testified that post-retirement, his monthly gross income would consist of between $2,454 and $2,954 in pension and 401(k) distributions, but he would be paying $968 per month in health insurance premiums.
¶7 The court found there was a change in circumstances and noted
that the change was voluntary. The court
further noted: “I have absolutely no
trouble believing that Mr. Dieman is probably wise in terms of getting out of a
situation that has great wear and tear physically.” Although the court implicitly found that
Dieman’s decision to retire was reasonable, it nevertheless looked to Dieman’s
earning capacity, noting it could not assume Dieman would never work
again. The court ultimately concluded it
was “not satisfied that there has been a substantial change of circumstances as
warrants a re-analysis of all these issues, or that there should be a change
based on [the] presumption that Mr. Dieman will never work again.” In the absence of a finding that Dieman’s
retirement was both voluntary and
unreasonable, the court erroneously exercised its discretion by considering
Dieman’s earning capacity to deny the maintenance revision motion. See
Sellers,
201
By the Court.—Order reversed and cause remanded.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.