COURT OF APPEALS DECISION DATED AND FILED August 25, 2010 A.
John Voelker Acting 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 |
IN COURT OF APPEALS |
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DISTRICT II |
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In re the marriage of: David Michael Phelan,
Petitioner-Appellant, v. Tracy Beth Phelan,
Respondent-Respondent. |
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APPEAL
from an order of the circuit court for
Before
Brown, C.J., Neubauer, P.J., and
¶1 PER CURIAM. David Michael Phelan appeals
from that portion of an order of the circuit court that modified the amount of
maintenance he pays to Tracy Beth Phelan, and the order that denied his motion
to convert child support and maintenance payments into a family support
payment. David argues on appeal that
¶2 David and Tracy were divorced in August 2007 after a sixteen-year marriage. In June 2007, David had a change in his job responsibilities, which he believed would negatively affect his income. At the divorce hearing, David testified that he believed his income in the new job would be about $230,000 per year. The court accepted this amount, and set child support and maintenance based on this amount.
¶3 David’s estimated income turned out to be too low. Consequently,
¶4 The court concluded that David’s increased income constituted a substantial change in circumstances. The court said:
I think the application of the guidelines is appropriate. I don’t see a reason to deviate. The increase in maintenance is substantially less than the increase in income, but there’s been no claim that Mrs. Phelan can’t live in the lifestyle that she’s been accustomed to during the marriage at that amount. So I think her claims for $5000 to $6000 [in maintenance] is excessive.
The court then increased the
maintenance
¶5 At a subsequent hearing, the court considered David’s request to convert his payments to family support. The court denied that request stating that this was a case where both maintenance and child support were called for, considered the changes in the tax laws, and then said:
So, I think simple is good. I think that’s a legitimate interest in the exercise of discretion, I think the award of maintenance and support are supported by the law and the facts, and for those reasons I think that this is best handled the way the Court initially ordered.
¶6 We first consider the court’s
decision to increase maintenance. We
review both the court’s determination that there has been a substantial change
in circumstances and the amount and duration of the award. A request for a change in a maintenance award
rests within the circuit court’s discretion. See Gerrits v. Gerrits, 167
¶7 How much maintenance to award and for how long to avoid it are
within the circuit court’s discretion, and we will not disturb those decisions
unless discretion was exercised erroneously.
¶8 When determining whether to modify maintenance, the court must
consider the same factors used to arrive at the initial award. Kenyon v. Kenyon, 2004 WI 147, ¶13,
277
¶9 In his brief to this court, David argues that the circuit court erred when it increased the maintenance payment because:
an existing maintenance award may not be increased due to an unexpected increase in income earned by the payor-spouse absent evidence that the initial award was insufficient to enable the payor-spouse to enjoy the same standard of living they enjoyed during the marriage; here, there was no such evidence.
David then goes on to argue
that
¶10
¶11 The circuit court did
not explain the legal or factual basis for its decision to modify maintenance. After finding a substantial change in
circumstances due to the updated income information, it explicitly rejected the
claims of
¶12 We also conclude that the circuit court did not adequately
explain why it would not allow David to pay family support instead of child
support and maintenance. “Simple is
good,” is not a legally sufficient reason for denying the motion.
By the Court.—Order reversed and cause remanded.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.