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COURT OF APPEALS
DECISION
DATED AND FILED
May 3, 2011
A. John Voelker
Acting 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 III
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In re the marriage of:
Kelly Lynn Kinjerski,
Petitioner-Respondent,
v.
Wayne Allen Kinjerski,
Respondent-Appellant.
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APPEAL
from a judgment of the circuit court for Brown County: TIMOTHY
A. HINKFUSS, Judge. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Wayne Kinjerski appeals his
judgment of divorce. Wayne alleges errors concerning maintenance
and child support. We affirm.
¶2 Wayne and Kelly Kinjerski were married in 1995. Two children were born to the marriage. At the time of the final hearing, Wayne was thirty-eight
years old and employed as a network engineer by Humana with an annual salary of
approximately $100,000. Kelly was
thirty-nine years old and employed as an administrative assistant by the Oneida
Tribe with an annual salary of approximately $30,000. The parties stipulated to property division
and physical placement. The issues of maintenance
and child support were addressed at the final hearing. The circuit court awarded Kelly limited term
maintenance of $1,000 monthly for a period of sixty months. The court also awarded child support in the
amount of $990.60 monthly. A motion for
reconsideration was denied, and Wayne
now appeals.
¶3 Maintenance and child support are decisions entrusted to the circuit
court’s sound discretion, and are not disturbed on appeal unless the court has
erroneously exercised its discretion. LeMere
v. LeMere, 2003 WI 67, ¶13, 262 Wis.
2d 426, 663 N.W.2d 789. We generally
look for reasons to sustain the circuit court’s decisions. Loomans v. Milwaukee Mut. Ins. Co., 38 Wis. 2d 656, 662, 158
N.W.2d 318 (1968). “[W]e may search the
record to determine if it supports the court’s discretionary
determinations.” Randall v. Randall, 2000
WI App 98, ¶7, 235 Wis.
2d 1, 612 N.W.2d 737. We will sustain
discretionary decisions if the circuit court examined the relevant facts,
applied a proper standard of law and, using a demonstrated rational process,
reached a conclusion a reasonable judge could reach. Liddle v. Liddle, 140 Wis. 2d 132, 136, 410
N.W.2d 196 (Ct. App. 1987). Findings of facts will be affirmed unless
clearly erroneous. Wis. Stat. § 805.17(2). The circuit court is also the ultimate
arbiter of the credibility of witnesses.
Cogswell v. Robertshaw Controls Co., 87 Wis. 2d 243, 250, 274 N.W.2d 647 (1979).
¶4 Wayne
fails to appreciate the deferential standard of review. First, the circuit court considered proper relevant
statutory maintenance factors and gave lengthy explanations supporting its maintenance
decision. Specifically, the court
considered the length of the marriage and the parties’ ages and health. It also noted the parties stipulated to an
approximately equalized property division.
The court discussed the contributions to the parties’ educational
levels, and indicated Wayne
obtained his bachelor’s degree and was working on his master’s degree during
the marriage. The court also indicated
Kelly would like to return to school and found that a maintenance award of $1,000
monthly for sixty months would allow her the opportunity to complete her
education and increase her earning capacity.
The court considered the parties’ earning capacities and took into account
that Kelly was working thirty-eight hours a week. The court also considered the tax
consequences to the parties.
¶5 In discussing the feasibility that the party seeking
maintenance can become self-supporting, the court stated the maintenance award
will “put the parties in a more equal position to make their respective budgets
and give both parties the opportunity to live at the lifestyle that they were
accustomed to during the marriage.” The court also stated the maintenance award
satisfies the fairness and support objectives.
The court specifically found that Kelly “was a marital partner with Mr.
Kinjerski in acquiring the salary he has acquired. I find that his employment is a ‘team effort.’ The amount and length of maintenance I have
ordered treats it as such.”
¶6 Wayne
raises infidelity and marital misconduct issues. The circuit court specifically addressed these
issues and noted marital misconduct is not a proper factor for courts to
consider when making maintenance determinations. See Dixon v. Dixon,
107 Wis. 2d
492, 505, 319 N.W.2d 846 (1982). Any
alleged extramarital relationships are irrelevant.
¶7 Our review of the record demonstrates the circuit court
considered proper relevant statutory maintenance factors, employed a process of
reasoning based upon the facts of record, and reached a conclusion based upon a
logical rationale. The court thoroughly
discussed each issue raised and appropriately exercised its discretion in
setting the amount and duration of maintenance.
¶8 Regarding child support, the parties agreed to the baseline
child support amount at the trial court level.
Based upon the shared placement and the parties’ actual incomes at the
time of the divorce, the court utilized the statutory guidelines and deviated
from those guidelines to allow Wayne
a credit for payment of the minor children’s health insurance premiums.
¶9 Wayne
insists on appeal that the court “did not utilize the appropriate income level
for Ms. Kinjerski in the child support analysis.” According to Wayne, Kelly is capable of working forty
hours per week and she “should be held to this amount of hours in the child
support analysis.” Kelly responds that Wayne “made no objection
to the amount of the income attributed to Ms. Kinjerski for purposes of
calculating child support.” Wayne does not reply to
this contention, and we deem it conceded.
See Charolais Breeding Ranches, Ltd.
v. FPC Secs. Corp., 90 Wis.
2d 97, 109, 279 N.W.2d 493 (Ct. App.
1979). In any event, the court
acknowledged that Kelly “could be making more money on the additional 2 hours
per week,” but also considered the effect on the children of Kelly being
removed from the home an additional two hours per week.
¶10 The circuit court considered proper factors regarding deviation
from the statutory child support obligation.
The court found the children had no independent financial
resources. The court considered the
parties’ financial resources, the maintenance Kelly received, and both parties’
standard of living. The court also
weighed the desirability that Kelly remain in her home, the daycare costs of
the parties and the periods of physical placement. The court considered the parties’ health
insurance costs and their educational needs.
¶11 The court specifically found it was in the children’s best
interests not to deviate from the child support formula except to reflect the
health insurance premium paid by Wayne. The court was compelled by two particular
factors: (1) to ensure the children
have the resources to enjoy a similar standard of living when residing with
either parent; and (2) the desirability of Kelly staying in the home and not being
required to obtain a second job. Without
the statutory amount of child support, Kelly may be required to seek additional
employment which would take her outside the home more and away from her
dependent children. Moreover, the court ordered the parties to equally pay the
variable costs for the minor children which would include child care. The court’s child support award incorporated
appropriate considerations and was a proper exercise of discretion.
By the Court.—Judgment affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.