COURT OF APPEALS DECISION DATED AND RELEASED August 23, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2290
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
In re the Marriage of:
LYNN G. JOCHEM,
Petitioner-Respondent,
v.
JEROME F. JOCHEM,
Respondent-Appellant.
APPEAL from a judgment
of the circuit court for Washington County:
JAMES B. SCHWALBACH, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
PER CURIAM. Jerome F. Jochem appeals
from a judgment of divorce from Lynn G. Jochem. He challenges the property division and the award of $900 per
month indefinite maintenance to Lynn.
We conclude that the trial court properly exercised its discretion and
we affirm the judgment.
We first address the
maintenance award. The determination of
the amount and duration of maintenance rests within the sound discretion of the
trial court and will not be upset absent a misuse of discretion. Wikel v. Wikel, 168 Wis.2d
278, 282, 483 N.W.2d 292, 293 (Ct. App. 1992).
Discretion is properly exercised when the court arrives at a reasoned
and reasonable decision through a rational mental process by which the facts of
record and the law relied upon are stated and considered together. Id.
Jerome argues that the
trial court failed to consider Lynn's earning capacity and include income she
could earn through a second job as a licensed real estate sales agent. The claim is without merit in light of the
trial court's statement that it did consider Lynn's previous parttime
supplemental employment as a realtor.
The trial court found that a real estate career is not compatible with
Lynn's present employment, employment which notably pays her more than one
would reasonably expect she could earn given her lack of professional
training.
The finding of job
incompatibility disposes of Jerome's argument that because he would not be
allowed to quit one of his jobs, Lynn should not be allowed to give up her
supplemental earnings as a realtor. The
trial court implicitly approved of Lynn's career choice and was not required to
make her work two jobs. In light of the
employee benefits of Lynn's job, there is no basis for a contention that Lynn
was deliberating shirking her responsibility to be fully employed. Further, Jerome's termination of his civil
service job or membership in the Wisconsin National Guard, two jobs which must
be maintained together, was not before the trial court. We reject Jerome's attempt to argue on such
speculation.
Jerome claims that the
award of indefinite maintenance is unfair because it does not provide Lynn with
an incentive to become self-supporting.
He also contends that the trial court failed to address the support and
fairness objectives of maintenance. The
support objective ensures that the payee spouse is supported in accordance with
the needs and earning capacities of the parties, and the fairness objective
ensures a fair and equitable financial arrangement between the parties in the
individual case. LaRocque v.
LaRocque, 139 Wis.2d 23, 33, 406 N.W.2d 736, 740 (1987).
We reject Jerome's
suggestion that the trial court was required to consider and discuss each of
the factors in § 767.26, Stats. The trial court need not consider all of the
factors but only those that are relevant.
Poindexter v. Poindexter, 142 Wis.2d 517, 532, 419 N.W.2d
223, 229 (1988). The weight to be given
to each of the factors in § 767.26 is within the discretion of the circuit
court. Cf. Herlitzke v. Herlitzke, 102
Wis.2d 490, 495, 307 N.W.2d 307, 310 (Ct. App. 1981) (it is for the trial court
to determine the weight and effect of the factors under § 767.255, Stats.). See also Trattles v. Trattles, 126 Wis.2d
219, 229, 376 N.W.2d 379, 384 (Ct. App. 1985) (Herlitzke
rationale extended to trial court's consideration of factors in § 767.26 for
determining maintenance).
The trial court's
primary consideration was the length of the marriage—twenty-two years. The court concluded that in order to have
each party maintain the marital standard of living, an equalization of income
was necessary. This was an entirely
appropriate approach. See Wikel,
168 Wis.2d at 282, 483 N.W.2d at 293 (when a couple has been married many years
and achieves increased earnings, an equal division of total income is a reasonable
starting point in determining maintenance).
The court also considered that Jerome was able to complete a college
degree, while Lynn was primarily responsible for taking care of the family even
when she was employed outside the home on a parttime basis. We conclude that the trial court properly
exercised its discretion in determining the amount and indefinite duration of
maintenance.
Jerome's final claim
with respect to maintenance is that the trial court failed to consider his
obligation to support a nonmarital child.
He contends that the trial court should have reduced his available
income by seventeen percent, the amount of child support due under applicable
guidelines. However, there is no court
order for child support for the nonmarital child. Jerome cannot claim the benefit of the child support guideline
when there is no order or payments being made under that provision. Jerome has custody of the child and his support
obligation is subsumed in his living expenses.
Even though the child may not reside with Jerome, there is no evidence
of voluntary payments made as child support.
Further, even if Jerome pays child support for the nonmarital child, the
trial court was not required to reduce the combined marital income by such
amounts. To do so would make Lynn bear
the consequences of Jerome's individual assumption of parenthood.
We turn to the trial
court's fifty-fifty division of property.
Jerome claims that because the trial court failed to adequately
investigate the value of the parties' joint Federated Account, the property
division constitutes an erroneous exercise of discretion. The trial court adopted Lynn's valuation of
the account, an amount in excess of what actually was in the account on the
date of the divorce. The account was awarded
to Jerome.
The valuation of a
particular marital asset is a finding of fact which we will not upset unless
clearly erroneous. Liddle v.
Liddle, 140 Wis.2d 132, 136, 410 N.W.2d 196, 198 (Ct. App. 1987). The appropriate valuation methodology is committed
to the trial court's discretion. Sharon
v. Sharon, 178 Wis.2d 481, 489, 504 N.W.2d 415, 419 (Ct. App.
1993). Thus, we determine if the trial
court examined the relevant facts and demonstrated a rational process to reach
a reasonable conclusion. Id.
The temporary order
entered by the family court commissioner froze all assets and provided that
certain expenditures could be made out of the Federated Account. The trial court found that Jerome acted
contrary to the temporary order by making use of the account through deposits
and withdrawals. Although Jerome
offered an accounting of his use of the account, the trial court rejected it as
incomprehensible and incredible. Jerome
did not corroborate his accounting with bank or payroll records. Thus, the trial court's valuation was based
on a credibility determination that was for the trial court to make. See Wiederholt v. Fischer,
169 Wis.2d 524, 533, 485 N.W.2d 442, 445 (Ct. App. 1992). Additionally, it was appropriate for the
trial court to make Jerome bear the risk of a failed accounting as a sanction
for his unauthorized depletion of the account.
We conclude there was no error in the trial court's valuation of the
Federated Account.
Jerome's final claim
pertains to his pensions. He argues that
in awarding him his civilian and military pensions as part of the property
division, Lynn is allowed a "double dip" into those assets because
the indefinite maintenance will eventually be paid from those assets. We agree with the trial court's response to
Jerome's claim. The issue is not
presented by the facts before the trial court, but depends on future
circumstances surrounding Jerome's retirement.
Therefore, the issue can only be addressed in the context of a
substantial change in circumstances claim.
Finally, Jerome contends
that the trial court failed to consider that because a pension is not worth
anything until Jerome retires, the award of both pensions to him was not
equitable. This contention lacks merit. When a divorce is granted, the present value
of a pension fund should usually be included in the marital estate for purposes
of property division. Pelot v.
Pelot, 116 Wis.2d 339, 343, 342 N.W.2d 64, 66 (Ct. App. 1983). The pensions here were discounted to present
value to account for the very inequity that Jerome claims. The trial court's handling of the pensions
was a proper exercise of discretion.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.