COURT OF APPEALS DECISION DATED AND RELEASED March 28, 1996 |
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. 95-0206
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
In re the Marriage of:
BEVERLY JEAN HANLEY,
Petitioner-Appellant,
v.
WILLIAM JOSEPH HANLEY,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Dane County:
DANIEL R. MOESER, Judge. Reversed
and cause remanded with directions.
Before Dykman, Sundby
and Vergeront, JJ.
PER
CURIAM. Beverly Jean Hanley appeals from a divorce
judgment. The issues are whether the
court erred in declining to award maintenance, find hardship, or order a
contribution to attorney's fees. We
reverse and remand.
At the time of the
circuit court decision, Beverly and the respondent, William Joseph Hanley, were
forty-seven. They were married in 1979. They have one child, born in 1979. By agreement of the parties, William has
primary placement of their daughter.
Beverly's income is currently $275 per month. After three years of technical college it is expected to be in
the range of $14,000 to $19,000.
William's income is significantly greater. William is in generally good health, while Beverly suffers from
current and potentially recurring health problems. The court did not order Beverly to pay child support. The court did not order William to pay
maintenance and decided the issue should not be left open. The court did not order William to
contribute to Beverly's attorney's fees.
Determination of
maintenance is within the discretion of the trial court. LaRocque v. LaRocque, 139 Wis.2d
23, 27, 406 N.W.2d 736, 737 (1987). A
discretionary determination must be a rational mental process by which the
facts of record and law relied upon are stated and are considered together for
the purpose of achieving a reasoned and reasonable determination. Id. Maintenance is governed by § 767.26, Stats., and is designed to further two objectives: to support the recipient according to the
parties' needs and earning capacities, and to ensure a fair and equitable
financial arrangement in the individual case.
Id. at 32-33, 406 N.W.2d at 740.
Beverly argues the court
erred in declining to award maintenance.
The court wrote:
This issue is the most difficult part of this
case. Whether to award maintenance and
whether to leave the issue open are very close questions. Given the property division awarded to
[Beverly] below, given that [William] has custody and will be supporting the
minor child of the parties, and given that [William] will not be receiving support
from [Beverly], the court concludes that [William] does not have an ability to
pay maintenance at this time. The court
further concludes that the issue of maintenance should be closed with respect
to both parties.
We conclude the court
erroneously exercised its discretion.
It appears that many of the factors in § 767.26, Stats., would favor Beverly. Some of the factors relied upon by the court
to conclude otherwise are not substantial.
William's support of their daughter is a factor of minimal significance
because of her nearness to majority.
The fact that Beverly is not paying child support is also of modest
significance because that may change at any time. The court provided no reasoning as to why the issue of
maintenance should be closed.
Therefore, on remand the circuit court shall reconsider the maintenance
issue.
Beverly argues the court
erred by not awarding her some of William's inherited property on hardship
grounds under § 767.255(2)(b), Stats. Because this issue is interwoven with the
maintenance issue, we reverse and remand for further consideration with the
maintenance issue.
Beverly argues the court
erred by not ordering William to make a contribution to her attorney's
fees. Because this issue is based on
factors similar to the above issues on which there will be further
consideration, we also reverse and remand on this issue.
On remand, the circuit
court shall reconsider maintenance, hardship and contribution to attorney's
fees.
By the Court.—Judgment
reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.