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COURT OF APPEALS DECISION DATED AND RELEASED September 6, 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. 95-0475-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN RE THE MARRIAGE OF:
ELLEN M. RHODE,
Petitioner-Respondent-Cross-Appellant,
v.
DENNIS E. RHODE,
Respondent-Appellant-Cross-Respondent.
APPEAL and CROSS-APPEAL
from a judgment of the circuit court for Oneida County: MARK A. MANGERSON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Dennis Rhode appeals and Ellen Rhode
cross-appeals that part of a divorce judgment awarding Ellen maintenance.[1]
Dennis argues that the award is excessive in both amount and duration. Ellen argues that the maintenance is
inadequate and based on speculation regarding her future earning capacity. We reject these arguments and affirm the
judgment.
The parties were divorced
after a twenty-year marriage. During
the marriage, Dennis was employed as an electrician, in recent years averaging
$50,000 annual income. He concedes an
earning ability of $42,900 without overtime.
Ellen was primarily a homemaker, raising the couple's two children. She worked full time as a bank teller for
the past three years, receiving an annual salary of approximately $11,300. Ellen suffers from depression exacerbated by
the break-up of the marriage and has been prescribed Prozac to alleviate the
depression. A clinical social worker
testified that Ellen would require six months to one year to overcome her
depression and become functional. A
vocational expert testified that if Ellen were to obtain a two-year degree, she
would have an earning capacity of $16,000 to $20,000 per year.
The trial court awarded
Ellen $1,100 per month maintenance for fifteen months to allow her time to
adjust to the dissolution of the marriage and decide whether she would continue
her education. If Ellen elected to
enroll in school, the court ordered $1,300 maintenance per month for two years
and $800 per month thereafter. If she
elects not to return to school, Ellen will receive indefinite maintenance of
$995 per month.
The amount and duration
of maintenance rests within the sound discretion of the trial court and will
not be upset on appeal if the decision reflects a rational mental process by
which the facts of record and the law relied upon are stated and are considered
together. Wikel v. Wikel,
168 Wis.2d 278, 282, 483 N.W.2d 292, 293 (Ct. App. 1992). Maintenance is designed to further two
objectives: (1) to support the
recipient according to the parties' needs and earning capacities; and (2) to
ensure fair and reasonable financial arrangement in the individual case. Id. The trial court's findings of fact will be sustained unless they
are clearly erroneous. Section
805.17(2), Stats.
The trial court's
maintenance decision reflects a careful consideration of the parties' needs and
earning capacities, and is based on findings of fact that are supported by the
record. The award of permanent
maintenance does not constitute a disincentive for Ellen to become
self-supporting. The trial court found,
based on the testimony of an expert vocational witness, that it was not
realistic to expect her to complete four years of college at this time. Two years of college would provide her with
a job that paid up to $20,000 per year.
In the absence of indefinite maintenance, the record does not show any
likelihood that Ellen could attain a standard of living comparable to that
enjoyed during the twenty-year marriage.
The amount of
maintenance is not excessive. The
maximum maintenance awarded Ellen, combined with the highest income she can
attain at present or with two additional years of schooling, does not equal
half of the parties' marital income.
Dennis argues that the trial court failed to consider relevant factors
set out in § 767.26, Stats. Dennis' arguments relating to Ellen's health and earning capacity
appear to be based on his skepticism about her mental health problems. The record contains sufficient evidence to
support the trial court's finding that Ellen's depression interferes with her
earning capacity.
Ellen argues that the
projections as to her educational attainment and potential income are too
speculative to support the maintenance award.
The projections that Ellen will "heal," that she would obtain
additional education if she applies herself, and that she is capable of earning
$16,000 to $20,000 per year are not based on mere speculation. They are based on the uncontradicted
testimony of a clinical social worker and a vocational expert. While the future can never be known with
substantial certainty, the trial court reasonably considered the experts'
projections and designed the maintenance structure to cover a number of
contingencies. Ellen was only
thirty-seven years old at the time of the divorce. It is reasonable to expect her to recover from the effects of the
divorce and produce substantial income in the future.
By the Court.—Judgment
affirmed. No costs on appeal.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.