COURT OF APPEALS DECISION DATED AND RELEASED September 28, 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. 94-2255
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF:
RANDALL SCOTT GROBE,
Petitioner-Respondent,
v.
JUDY M. GROBE,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Dane County:
RICHARD J. CALLAWAY, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Dykman, J.
PER CURIAM. Judy Grobe appeals from an order denying
her motion to continue and increase maintenance paid by her ex-husband, Randall
Grobe. The issue is whether the
parties' stipulation for "family maintenance" was subject to
modification. We conclude that it was
not, and therefore affirm.
Judy and Randall
divorced in 1981. Judy received custody
of their two sons. Pursuant to
stipulation, the judgment provided for "family maintenance" payments
of $1000 per month until August 1984 followed by child support payments of $500
per month commencing in September 1984.
The parties also stipulated to a property settlement "in lieu of
any and all maintenance except as otherwise provided herein," and agreed
that "[t]he parties shall hereafter live separately ... and each party may
for his or her separate benefit engage in any employment, business or
profession as he or she shall chose."
In March 1984, the
parties stipulated to extending the $1000 family maintenance payments until
August 1985. The court approved that
amendment and so ordered it in December 1984.
Later that month, the
parties stipulated that the $1000 payments would continue until Judy remarried,
and would be considered "alimony" for tax purposes. In December 1985, the parties stipulated
that the $1000 family maintenance payments would continue until "further
order of the court or until the minor children attain their age of
majority." Again, the court
approved and ordered the divorce judgment amended accordingly. In 1987, Randall increased the family
maintenance payment to $1200 per month, although there was no written agreement
to that increase.
In the ensuing years,
Randall greatly increased his income and assets. Meanwhile, Judy experienced health difficulties and her financial
situation grew more precarious.
In August 1993, Judy
moved the family court commissioner for an order to divide the family
maintenance into maintenance and child support components, and to increase the
support component. At the time, the
parties' younger son, then fifteen years old, lived with Randall, and the older
son, then seventeen years old, lived with Judy. The older son's eighteenth birthday was in January 1994, and he
was scheduled to graduate from high school in June 1994.
The family court
commissioner's order on the motion characterized Randall's obligation as
"family support" and increased it to $4000 from September 1993 until
May 1994, when all payments were ordered ceased. Judy petitioned for de novo review by the trial court, and
Randall moved the court for an order reducing the family court commissioner's
$4000 per month award, based on his allegedly changed circumstances since the
hearing on the motion. The trial court
concluded, however, that it lacked authority to amend the parties' stipulation
to limit the amount and duration of Randall's obligation. Judy takes her appeal from that order.
Maintenance is subject
to modification unless the parties stipulate otherwise and both parties enter
into the stipulation freely and knowingly, the overall settlement was equitable
at the time, it was not illegal or against public policy and the parties seeking
release from the order contends that the court could not have entered it
without the parties' agreement. Nichols
v. Nichols, 162 Wis.2d 96, 104, 469 N.W.2d 619, 622 (1991).
Judy first contends that
the Nichols rule does not apply because the "family
maintenance" at issue contained a child support component and, therefore,
remains modifiable despite any stipulations to the contrary. We disagree. In this action, Judy seeks additional maintenance. No persuasive reasons exist why the Nichols
rule cannot apply merely because the parties chose to combine maintenance with
child support in one payment. A
stipulation regarding maintenance would still bind the parties as to the
maintenance component of that payment.
Judy next argues that
even if the parties could have agreed to nonmodifiable maintenance, they failed
to do so here. Again, we disagree. The divorce judgment provided for the waiver
of all maintenance "except as otherwise provided herein," by the
family maintenance agreement. The judgment
also provided that the parties could engage in any employment, business or
profession "for his or her separate benefit." These provisions plainly amount to a
stipulation waiving maintenance except for the stipulated family
maintenance. Because the stipulation is
not challenged as involuntarily, unfair, illegal or against public policy, that
resolves the issue.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.