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COURT OF
APPEALS DECISION DATED AND
RELEASED July
30, 1996 |
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. 95-1412
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT I
IN RE
THE MARRIAGE OF:
NANCY
A. WEINREICH,
Petitioner-Respondent,
v.
KENTON
L. WEINREICH,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Milwaukee County: DOMINIC S. AMATO, Judge. Affirmed in part; reversed in part and
cause remanded.
Before
Sullivan, Fine and Schudson, JJ.
PER
CURIAM. Kenton L. Weinreich appeals
from an order denying his motion to reconsider his divorce judgment. He raises four main issues on appeal,
relating to the amount of family support, the length of the support payments,
the computation of his income, and contribution to attorney's fees. For reasons discussed more fully below, we
affirm in part, reverse in part, and remand the matter to the trial court for a
resolution consistent with this opinion.
I.
Background.
Kenton
and Nancy were married in 1980 and had two children during the marriage. The judgment of divorce was entered by a
court commissioner on August 17, 1994.
The judgment of divorce incorporated a marital settlement agreement
executed by the two parties on May 12, 1994.
The agreement included a temporary family maintenance provision
requiring Kenton to pay 25% of his gross monthly income for family maintenance
until a hearing in the circuit court was held.
The agreement settled all issues regarding the divorce settlement with
the exception of the amount of future family maintenance, classification of
Ken's per diem pay and income tax issues.
These issues were settled by hearings in the circuit court held on
November 9 and November 14, 1994. As a
result of these hearings, the circuit court entered an order on February 27,
1995.
The
February 1995 order mandated Kenton to pay family support beginning January 1,
1995, and continuing indefinitely. The
amount of support due each month is based on a formula of 50% of Kenton's gross
income less 50% of Nancy's gross income, with Nancy's gross income being
lowered by the approximately $150/month medical insurance premium she
paid. The parties are also required to
exchange updated wage statements every four months so that the monthly payment
can be adjusted to reflect any changes in either party's gross income. The order mandated that all per diems
received by Kenton must be included in his gross income for purposes of the
support formula. Additionally, Nancy
was awarded the tax exemptions for both of the children. The order also required Kenton to pay $375
towards the $750 Nancy incurred in attorney's fees for the two days of
hearings.
The
court ordered a hearing to be held on November 14, 1996, to review the economic
situation of both parties. On April 10,
1995, the trial court entered a final order denying Kenton's motion for
reconsideration of the issues before this court.
II. Analysis.
Kenton
argues that the trial court erroneously exercised its discretion by: (1)
failing to consider the relevant statutory factors in determining the amount of
family support; (2) failing to limit the length of time the family support
would last; and, (3) including in the award formula his entire per diem
reimbursement amount without considering actual expenses.
Section
767.26, Stats., authorizes
maintenance payments and sets forth factors for an award. The factors are designed to ensure a fair
and equitable financial arrangement that provides for the support of the payee
in accordance with the ability of the payor to pay. LaRocque v. LaRocque, 139 Wis.2d 23, 32‑33,
406 N.W.2d 736, 740 (1987). The
determination of the amount of maintenance is within the sound discretion of
the trial court, and we will affirm it absent an erroneous exercise of
discretion. Id. at 27,
406 N.W.2d at 737. A discretionary
decision is “the product of 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.” Hartung v. Hartung, 102 Wis.2d
58, 66, 306 N.W.2d 16, 20 (1981).
A. Section
767.26, Stats., factors.
Kenton's
first argument deals with the perceived failure of the trial court to consider
relevant factors under § 767.26, Stats. The trial court has an obligation to
consider relevant statutory factors, but the court need not address every
factor. Parrett v. Parrett,
146 Wis.2d 830, 838, 432 N.W.2d 664, 667 (Ct. App. 1988). The first factor Kenton claims the court did
not fully consider was Nancy's earning capacity. Contrary to Kenton's claim, the trial court did consider Nancy's
earning capacity. Her testimony
indicates that she had many short-term positions because she and Kenton moved
often. Her testimony also indicates
that she needed to improve her skills to increase her earning capacity. The trial court determined that Nancy was
credible regarding her earning capacity, and we must accept the trial court's
factual findings that are not clearly erroneous. Bentz v. Bentz, 148 Wis.2d 400, 403-404, 435 N.W.2d
293, 294 (Ct. App. 1988).
Kenton
next argues that the trial court erred by beginning its analysis in determining
maintenance with a fifty-fifty split of income, as was done in LaRocque,
because his marriage only lasted thirteen years. While this is shorter than the twenty-five-year marriage in LaRocque,
we see no merit in Kenton's argument that a fifty-fifty starting point
was an erroneous exercise of discretion.
There was no erroneous exercise of discretion on this point.
Kenton
also argues that the trial court relied on a budget submitted by Nancy which he
claims was flawed in many respects. He
argues that the result is that he must pay more support than is actually needed
by Nancy. In its decision, the trial
court noted Nancy's non-economic contributions to the marriage and her
assistance to Kenton in his successful effort to become a commercial airline
captain. The trial court relied on this
factor, in addition to Nancy's budget, when it determined the amount of support
that it would award.[1] The trial court found Nancy's budget and
testimony credible, and we see no erroneous exercise of discretion.
Kenton
also alleges that the trial court failed to properly consider the tax
consequences that arose out of the its decision. Kenton claims that the trial court failed to consider his social
security and medicare tax in computing income available for support. He also claims that it erred in granting
both of the exemptions for the children to Nancy because their monthly value to
her is $63, while the monthly value to him would be $123.[2] The trial court did not make a specific
reference as to the impact of social security and medicare taxes on Kenton's
total income. It also failed to make a
specific reference to why it made economic sense to grant both of the
children's income tax deductions to Nancy.
Indeed, it appears that the allocation of the exemptions to Nancy unduly
reduces Kenton's income, leaving less available resources for both parties—it
is mutually disadvantageous. Under Wetzel
v. Wetzel, 35 Wis.2d 103, 110-11, 150 N.W.2d 482, 485-86 (1967), tax
considerations are not controlling, but the court should consider and be aware
of the tax consequences. While we do
not find that the trial court erroneously exercised its discretion, we do
suggest that the trial court may wish to consider these tax matters at the
upcoming November 14, 1996, review of maintenance and make appropriate
adjustments that the trial court may conclude are equitable.
B. Duration
of support.
Kenton
also argues that the trial court erroneously exercised its discretion by
failing to limit the term of the family support. Kenton asserts that the term of support should be limited and the
burden of proof should be on Nancy, and not him, to show that further support
is necessary. The amount and duration
of maintenance lies within the sound discretion of the trial court. Bentz, 148 Wis.2d at 403, 435
N.W.2d at 294. As the trial court
noted, Nancy must make an effort to improve her employability. The trial court also stated that when it
would reexamine the situation at the November 1996 hearing, it would look at
both parties on a level playing field, with neither party having to carry a
burden of proof. Given the factual
findings of the court regarding the specific circumstances of both parties, we
perceive no erroneous exercise of discretion in the trial court's setting of
indefinite maintenance.
C. Per
diem expenses.
Kenton
contends that the trial court erroneously exercised its discretion when it
assessed family support against his entire per diem reimbursement amount
without considering actual expenses.
This court has held that any per diems greater than actual expenses for
which the per diems are designed to compensate must be considered gross
income. Stephen L.N. v. Kara L.H.,
178 Wis.2d 466, 474-75, 504 N.W.2d 422, 426 (Ct. App. 1993). Under the record before this court, we see
no consideration by the trial court of the actual expenses that the per diems
compense. Therefore, we reverse and
remand for a hearing, which may be held on November 14, 1996, for the court to
determine the adjustment to income for actual expenses.
D. Attorney's
fees.
Kenton
asserts that the trial court erroneously exercised its discretion by ordering
him to pay $325 towards Nancy's attorney's fees for the hearings held on
November 9, and 14, 1994, because the agreement executed on May 12, 1994,
provided that each party pay his or her own attorney's fees for the
divorce. The agreement provides that
“[e]ach party shall be liable for their own attorney's fees and costs in connection
with this action, no contribution being required of either party.” The trial court found that the agreement was
fair and reasonable, approved it, and incorporated it into the judgment which
was entered August 17, 1994. The
hearings held in November 1994 were in connection with the divorce action and
are governed by the terms of the agreement regarding attorney's fees. Neither party moved for relief from the
judgment. See § 806.07, Stats.
The trial court did not vacate the judgment as to attorney's fees, which
is a prerequisite for it to have the power to deviate from the agreement which
was incorporated into the judgment. We
therefore conclude that the trial court was without competency to act on the
issue of attorney's fees in its February 27, 1995 order. See Brandt v. LIRC, 160
Wis.2d 353, 366-67, 466 N.W.2d 673, 678 (Ct. App. 1991), aff'd, 166
Wis.2d 623, 480 N.W.2d 494 (1992). That
portion of the order directing Kenton to pay $375 towards Nancy's attorney's
fees is hereby reversed.
By
the Court.—Order affirmed in
part; reversed in part and cause remanded.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.