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COURT OF APPEALS DECISION DATED AND RELEASED JUNE 27, 1995 |
NOTICE |
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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. 94-3433-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
CHARLOTTE GADZINSKI,
Petitioner-Respondent,
v.
GERALD GADZINSKI,
Respondent-Appellant.
APPEAL from orders of
the circuit court for Trempealeau County:
ALAN S. ROBERTSON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Gerald Gadzinski appeals the denial of his
post-divorce motion seeking modification of maintenance payments and denial of
his motion for reconsideration.[1] This court affirms the decisions of the
trial court.
In February 1993,
Charlotte and Gerald Gadzinski were divorced after an eighteen-year
marriage. They were awarded joint legal
custody of their teenaged daughter, who resided primarily with Gerald. At the time of the divorce, Gerald earned
approximately $80,000 annually as a sales manager and also owned and operated a
tavern. The trial court ordered Gerald,
fifty years of age at the time, to pay $1,200 per month spousal maintenance, to
be reviewed when Charlotte obtained employment and terminated when Gerald
retired. Maintenance payments were
deducted from Gerald's wages until he resigned his sales position effective
January 14, 1994. No maintenance
payments were made after January 15, 1994.
In December 1993, Gerald
brought a motion based on his impending "retirement" from his sales
job and requesting revision or termination of maintenance. At the hearing in March 1994, Gerald
testified that he had resigned, but also asserted that his
"retirement" constituted a significant change in circumstances and
that Charlotte, by failing to obtain employment, was shirking her duty to
contribute to the support of their daughter.
The court refused to modify the maintenance award, finding that Gerald
had not retired but had resigned from his job, thereby voluntarily reducing his
ability to pay. The court ruled that
maintenance would continue until Gerald's retirement or earliest retirement
eligibility. The court also found that
Charlotte had not sought work after the divorce and had not worked "for
some time prior to the divorce." The
court ruled that she was not required by the divorce judgment to obtain
employment. Gerald did not appeal the
court's decision.
In September 1994,
Charlotte filed a motion for contempt for failure to pay maintenance, and
Gerald brought a second motion requesting the reduction or elimination of
maintenance and requesting that Charlotte be ordered to pay child support. The motions were heard in October 1994. Gerald again raised the issue of
"retirement," which was the subject of his first motion, and raised
for the first time the issue that Charlotte had been employed since the March
hearing. Charlotte testified that since
March she had worked at a casino for eight weeks, earning $2,121, but quit
because of physical problems exacerbated by prolonged standing. She also testified that she worked in home
health care for six weeks, earning $1,600, but quit when she could not afford
to renew the lease on her apartment and had to move in with her mother. The court reiterated that Charlotte was not
required to obtain employment under the divorce decree and that she sought
employment to help support herself. The
court refused to modify the maintenance award, ordered sanctions against Gerald
to compel him to pay all court-ordered maintenance, and ordered Charlotte to
pay child support at the rate of 17% of gross earnings.
Gerald brought a motion
for reconsideration, arguing that the court's decision was unfair and failed to
consider Charlotte's lack of diligence in seeking employment. The trial court heard and denied Gerald's
motion for reconsideration in December 1994. Gerald appeals the denial of his second motion for revision of
maintenance and his motion for reconsideration. This court affirms the decisions of the trial court.
Maintenance payments may
be modified only upon a showing of a substantial change in the financial
circumstances of the parties. Licary
v. Licary, 168 Wis.2d 686, 692, 484 N.W.2d 371, 374 (Ct. App. 1992);
§ 767.32(1)(a), Stats. A decision made on a certain state of facts
is given the effect of res judicata so long as that factual situation has not
materially changed. Thies v.
MacDonald, 51 Wis.2d 296, 301-02, 187 N.W.2d 186, 189 (1971). The court has no power to retry issues
determined by an earlier hearing. See
id. at 302, 187 N.W.2d at 189.
The party seeking to alter the provisions of the judgment must
demonstrate that the circumstances have materially changed. Id. at 301, 187 N.W.2d at
189. The decision whether to modify
maintenance is made in light of the support objective of maintenance, which is
that the payee spouse should live at a standard reasonably comparable to that
enjoyed during the marriage if the payor spouse does. See Dowd v. Dowd, 167 Wis.2d 409, 417, 481
N.W.2d 504, 507 (Ct. App. 1992).
When a determination
whether to modify a maintenance award is based on findings of fact, this court
will not upset those findings unless they are clearly erroneous. See Thies, 51 Wis.2d at 303,
187 N.W.2d at 190. Where the decision
rests primarily on an exercise of discretion, the court examines whether the
trial court erroneously exercised its discretion. Id. at 303-04, 187 N.W.2d at 190. This court will sustain a trial court's
discretionary decision if it was based upon facts appearing in the record, in
reliance on appropriate law and is the product of a rational mental process
achieving a reasonable determination. See
Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20-21
(1981).
The trial court found
that, pertaining to his resignation from employment, Gerald raised the same
issues in his second motion for revision of maintenance that were the subject
of his first.[2] A review of the record supports the court's
findings. Gerald's change in income was
the subject of the March hearing and cannot be considered as the basis of a
substantial change in circumstances in a subsequent hearing. In the absence of a substantial change of
circumstances, there is no authority to modify the maintenance award and the
court correctly refused to do so.
Gerald's recourse after the March 1994 decision was to bring an appeal,
not to file a second motion on the same grounds.
The
trial court also found that Charlotte's employment after the March 1994 hearing
did not constitute a significant change in circumstances. A review of the record reveals that the
court, echoing its earlier decisions, implicitly found that Charlotte, given
her lack of employment background or training, is unlikely to become
self-supporting at a standard of living reasonably comparable to that enjoyed
during the marriage. Charlotte was
generally not employed during the marriage, has few employment skills and
modest earning power. Further, the
court had already decided at the March 1994 hearing that Charlotte need not
seek employment. The court's October
1994 finding, therefore, is not clearly erroneous.
Moreover, in reaching
its decision, the court applied the standard stated in Dowd, 167
Wis.2d at 417, 481 N.W.2d at 507, that the support objective of maintenance is
not satisfied when the payee spouse is not living at the standard of living
reasonably comparable to that enjoyed during the marriage. This constitutes a reasonable application of
a correct rule of law and is not an erroneous exercise of discretion.
The court also denied
Gerald's motion for reconsideration raising no new issues, a decision within
the discretion of the court. A review
of the record indicates no erroneous exercise of discretion.
By the Court.—Orders
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.