COURT OF APPEALS DECISION DATED AND RELEASED July 13, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-0523
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF:
ELIZABETH LORNITZO,
(ELSPETH M. COLWELL),
Petitioner-Respondent,
v.
FRANK LORNITZO,
Co-Petitioner-Appellant.
APPEAL from an order of
the circuit court for Dane County:
Patrick J. Fiedler, Judge. Affirmed.
Before Gartzke, P.J.,
Dykman and Vergeront, JJ.
PER CURIAM. Frank Lornitzo appeals from an order
clarifying a maintenance award to his former wife, Elspeth Colwell. Frank claims that his divorce stipulation
with Elspeth prohibits the use of his Veteran's Administration (VA) pension to
recalculate Elspeth's maintenance. We
conclude that the stipulation which provides for maintenance payments based
upon "income from all sources" includes Frank's VA pension and that
Frank agreed to double count his VA pension by agreeing to the terms of the
stipulation. Consequently, he is
estopped from claiming that income from his VA pension should be exempt from a
maintenance calculation. We therefore
affirm.
BACKGROUND
Elspeth Colwell and
Frank Lornitzo were divorced in March 1983.
They stipulated to a maintenance payment to Elspeth originally in the
amount of $407.08 per month. In the
stipulation's property division section, Frank was given "all right, title
and interest in and to his retirement account with his employer, the Veteran's
Administration." The stipulation
also divested Frank's and Elspeth's property rights through a mutual release of
all right, title, and interest in and to the property awarded to the
other.
The portion of the
stipulation governing modification of the maintenance payment when Elspeth
retired or reached the age of sixty-five provides:
The
terms of paragraphs a & b shall continue until [Elspeth] retires or reaches
age 65, whichever first occurs.
Thereafter, [Frank] shall pay monthly as maintenance for [Elspeth] a sum
recalculated annually as follows:
1. If
[Elspeth] is eligible for and actually receiving Social Security benefits,
[Frank] shall pay one-half his monthly income from all sources less
$500.00.
(Emphasis
added.)
In 1992, Frank requested
modification of maintenance and the trial court reduced Elspeth's maintenance
to $250 per month. In October 1993,
just prior to her sixty-fifth birthday, Elspeth requested that the court
implement the provisions of the stipulation governing modification of maintenance. The court found that Frank's monthly income
consisted of $1,109 in wages, $1,215 pension benefits and $232 in social
security for a total of $2,556. The
court calculated Elspeth's maintenance by dividing Frank's $2,556 monthly
income by one-half which equals $1,278, and by reducing this amount by
$500. The maintenance award was thus
set at $778 per month. Frank appeals.
STANDARD OF REVIEW
Construction of a
contract, including the determination of whether its terms are ambiguous, is a
legal issue which we decide de novo.
Old Tuckaway Assoc. Ltd. Partnership v. City of Greenfield,
180 Wis.2d 254, 280, 509 N.W.2d 323, 333 (Ct. App. 1993). A stipulation is but a form of a
contract. Cummings v. Klawitter,
179 Wis.2d 408, 415, 506 N.W.2d 750, 753 (Ct. App. 1993). When we determine that a contract is
unambiguous, we will not revise it in order to relieve a party of any agreed
upon, albeit disadvantageous, terms. Old
Tuckaway, 180 Wis.2d at 280, 509 N.W.2d at 333.
MAINTENANCE
Frank does not dispute
that his VA pension is income. He argues,
however, that if we determine that the stipulation is subject to multiple
interpretations, we must conclude that the VA pension was awarded to Frank as
his separate property and therefore cannot be used for maintenance purposes. He also asserts that any ambiguities in the
stipulation must be construed against Elspeth.
The phrase "income
from all sources" in the stipulation is clear and unambiguous. It is a broad phrase and means that the
maintenance award must be based upon income from Frank's wages, social
security, and VA pension. The
stipulation demonstrates that Frank agreed to pay Elspeth one-half of his
monthly income from all sources; there is no exception for an asset divided by
the stipulation. We will not rewrite
the agreement to read "income from all sources except income from Frank's
Veteran's Administration pension."
Frank also argues that
VA pension benefits awarded to him in the final stipulation cannot be double
counted when calculating the maintenance award. We disagree. Generally,
an asset may not be considered both as marital property subject to division and
as future income for the purpose of recalculating maintenance. Hommel v. Hommel, 162 Wis.2d
782, 788, 471 N.W.2d 1, 3 (1991).
However, Frank agreed to all terms of the stipulation, including the
provision expressly providing that the maintenance payments must be based upon
"income from all sources."
The potential income value of the VA pension was known to both parties
at the time they signed the stipulation, yet this all-inclusive language was
nonetheless used.
A party may be estopped
from preventing the enforcement of a stipulation reduced to an order even
though a trial court is without power to enter that order absent the
stipulation. See, e.g., Rintelman
v. Rintelman, 118 Wis.2d 587, 596-98, 348 N.W.2d 498, 502-03 (1984)
(husband who stipulated that he would make lifetime maintenance payments is
estopped from requesting termination of those payments upon wife's remarriage);
Bliwas v. Bliwas, 47 Wis.2d 635, 639-41, 178 N.W.2d 35, 37-38
(1970) (father who stipulated that he would pay for his son's education beyond
his son's twenty-first birthday was estopped from preventing its
enforcement). Frank has presented no
evidence that he did not enter into the stipulation freely and knowingly, or
that the stipulation is unfair, inequitable, illegal or against public
policy. See Rintelman,
118 Wis.2d at 596, 348 N.W.2d at 502-03.
We conclude that Frank is estopped from challenging the stipulation and
therefore affirm the trial court's order enforcing it.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.