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COURT OF APPEALS DECISION DATED AND RELEASED November 30, 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(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. 95-1664-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF:
DIANE L. GUSE,
Petitioner-Respondent-Cross Appellant,
v.
RONALD C. GUSE,
Respondent-Appellant-Cross Respondent.
APPEAL and CROSS-APPEAL
from a judgment and an order of the circuit court for Rock County: JAMES P. DALEY, Judge. Reversed and cause remanded with
directions.
Before Dykman, Sundby,
and Vergeront, JJ.
PER CURIAM. Ronald
C. Guse appeals from a judgment divorcing him from Diane L. Guse, and a
subsequent order modifying the judgment.
Diane cross-appeals from the modification order. Contested issues in the divorce included
Diane's maintenance, child support and the property division. The issues on appeal are whether the trial
court erroneously exercised its discretion by awarding maintenance and by
granting Diane substantially more than one-half of the marital property. On Diane's cross-appeal, the issue is whether
the court erroneously exercised its discretion by amending the child support
order on reconsideration. We reverse on
all issues.[1]
Ronald, forty-four, and
Diane, thirty-eight, divorced in May 1995 after an eighteen-year marriage. Both parties worked throughout the
marriage. In 1994, Ronald earned over
$51,000 working for General Motors (GM), and Diane earned approximately $18,000
working thirty-two hours per week for a credit union. Ronald, however, introduced evidence that his annual salary,
based on a forty-hour week, would be $39,000 and that he worked an unusual
amount of overtime in 1994.
Because Diane received
custody of the parties' two children, the trial court ordered Ronald to pay 25%
of his gross income in child support.
For maintenance purposes, the court found Ronald's earning capacity to
be $40,000 per year and Diane's to be $23,375 per year. The court based the $40,000 figure on its
belief that GM intended to cut back overtime by hiring 500 new employees. The court then reduced both income figures
by 25% to represent each parties' child support contribution and determined
that a $120 per week maintenance payment was necessary and appropriate to
equalize the remaining gross income.
Because the court ordered Ronald to pay only $100 per week, Diane
received $52,000 worth of property out of the net marital estate of $90,000.[2]
Ronald moved for
reconsideration of the maintenance award, arguing that it left him unable to
meet his monthly living expenses while leaving Diane with excess income. The trial court denied his motion on the
grounds that Ronald actually earned more income, through overtime, than the
$40,000 figure used to compute the award.
However, on its own motion, the court modified the child support order
from 25% of that actual income, to a fixed amount of $185 per week,
representing 25% of a $40,000 per year salary.
The court reasoned that "I used the forty-hour work week I've
always used. Twenty-five percent of the
forty-hour work week to children.
Because I [have] found that if, in fact, I encourage people to work
longer, the funds accrue to the children through the form of gifts and so
forth."
We review trial court
decisions regarding child support for the proper use of discretion. Wallen v. Wallen, 139 Wis.2d
217, 223, 407 N.W.2d 293, 295 (Ct. App. 1987).
We will also not disturb the court's division of marital property or the
maintenance award unless a party demonstrates an erroneous exercise of
discretion. Haugan v. Haugan,
117 Wis.2d 200, 215, 343 N.W.2d 796, 804 (1984). The court properly exercises its discretion if it articulates its
reasons, bases its decision on facts of record and the correct legal standards
and any monetary awards are neither excessive nor inadequate. Id. at 215-16, 343 N.W.2d at
804.
We reverse and remand
for reconsideration of the maintenance award.
Equally dividing the parties' total income is the starting point for
determining maintenance in a long-term marriage. LaRocque v. LaRocque, 139 Wis.2d 23, 39, 406 N.W.2d
736, 742 (1987). However, the trial
court may not mechanistically divide income without consideration of other
factors. Kennedy v. Kennedy,
145 Wis.2d 219, 223, 426 N.W.2d 85, 87 (Ct. App. 1988). Here, the court failed to consider and
evaluate Ronald's contention that the maintenance award actually left the
parties in a grossly disproportionate financial situation. The court must consider both need and
ability to pay. Id. at
222, 426 N.W.2d at 86. Here, the court
did neither.
Additionally, the trial
court must reevaluate Ronald's income.
It appears that Ronald's income for maintenance purposes was calculated,
at least in part, based on anticipated events.
However, no evidence was introduced as to those events. On remand, the court may take additional
evidence to clarify Ronald's actual and anticipated income.
The trial court must
also reconsider the unequal property division.
In all cases, maintenance and division of property are closely related
and should be considered together. Dean
v. Dean, 87 Wis.2d 854, 878, 275 N.W.2d 902, 913 (1979). Here, the court expressly made the awards
interdependent.
The trial court must
reevaluate child support giving due weight to the parties' particular
circumstances. Under § 767.25(1j),
Stats., courts must calculate
child support under the Department of Health and Social Services's percentage
guidelines, based on the payor's actual gross income. A court may modify that award if it finds that using the
percentage standards is unfair to the child or to any of the parties, after
considering a long list of factors pertaining to the child and the parties'
particular circumstances. Section 767.25(1m),
Stats. Here, as a matter of general policy, the court reduced child
support to a percentage of Ronald's estimated base income, as opposed to his
actual income including overtime pay.
As directed by § 767.25(1m), the court must use the specific facts
of this case and not general policy if it wishes to modify Ronald's child
support obligation. The court properly
exercises its discretion only if it relies on the correct legal standards. Haugan, 117 Wis.2d at 215-16,
343 N.W.2d at 804. Accordingly, we
reverse. No costs to either party.
By the Court.—Judgment
and order reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.