COURT OF APPEALS DECISION DATED AND RELEASED February 27, 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(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. 95-2260
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
In re the Marriage of:
PATRICIA FROSTMAN,
Petitioner-Respondent,
v.
KENNETH R. FROSTMAN,
Respondent-Appellant.
APPEAL from a judgment
of the circuit court for Ashland County:
NORMAN L. YACKEL, Judge. Affirmed
in part and reversed in part.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Kenneth Frostman appeals a judgment of
legal separation, claiming that the trial court erroneously exercised its
discretion with respect to: (1) the
award of maintenance to his former wife, Patricia Frostman; (2) the award
of the residence to Patricia; and (3) the imposition of a "penalty"
when he exercises his right to convert the legal separation to a divorce
decree. We conclude that the record
reflects a reasonable basis for the maintenance award of $400 per month to
Patricia, as well as for the award of the residence to her. Because the record does not demonstrate a
reasonable basis for an automatic increase upon conversion of the decree to one
of divorce, we affirm in part and reverse in part.
The parties were married
in 1959. At the time of their legal
separation, Patricia was fifty-eight and Kenneth was sixty-three years of
age. Their children had reached the age
of majority. Patricia works as a
part-time secretary at James River Corporation, and in 1994 her gross annual
income was $2,745.55 and $2,202.64 net.
She also earned in 1994 a total of $766.61 as secretary of the board at
Marathon Credit Union. Edward Utities,
a vocational expert, testified that Patricia's earning capacity was approximately
$3,440 per year. Jack Casper, also a
vocational expert, testified that her earning capacity was between $7,800 and
$11,700 annually.
Kenneth, who retired
after thirty-four years at James River, receives a social security disability
check for $1,056 per month. He also is
eligible for a pension from James River, that pays $766.79 per month. When Kenneth retired, he elected the joint
survivor option, which means that if Patricia survives Kenneth, she receives
one-half the amount of the pension for her life. As a result, he receives $104.17 per month less in pension than
he would have otherwise received.
Patricia testified that
she has high blood pressure and heart arrhythmia, related to stress. Kenneth, a machinist by training and
experience, has had several back surgeries and a fusion and has been determined
disabled by the Social Security Administration.
The parties stipulated
the value of their residence to be $70,750.
The parties also own a cabin that the court valued at $30,000.
Kenneth testified that
his monthly expenses were $1,502.
Patricia testified that her monthly expenses were $1,380, which included
$223.91 for health insurance and $350 for food. She testified that her two sons live with her and contribute $100
apiece each month for food.
If the parties divorce,
Patricia is not eligible for the health insurance coverage from James River,
but, if legally separated, she will continue to be covered. The premium is currently $223.91 per month.
The trial court found
that the parties' combined monthly income totaled $1,303.43, consisting of
Kenneth's social security disability income of $1,056 per month and Patricia's
net earnings from James River of $183.55 and Marathon Credit Union of $63.88. The trial court equally divided Kenneth's
pension from James River by means of a Qualified Domestic Relations Order and
for that reason did not include the pension in its calculation of monthly
income.
In its written decision,
the trial court concluded that the parties' combined income should be equally
divided. It ordered Kenneth to pay
Patricia $400 per month as maintenance and ordered that in the event he elects
to change the legal separation to a divorce judgment, his maintenance obligation
shall increase to $515 per month. Patricia was awarded the residence, and Kenneth was awarded the
cabin. Other items of personalty were
divided to effectuate an equal property division.
Kenneth first challenges
the maintenance award. He argues that
the trial court incorrectly understated Patricia's gross income; it failed to
articulate its rationale in granting Patricia maintenance; its award does not
reflect its intent to award Patricia one-half the parties' combined total
income; the court failed to consider Patricia's earning capacity; it failed to
consider the parties' relative ages and health; it failed to consider the
effect of the property division; and failed to consider Patricia's
asset-generating income. We conclude
that the record discloses a reasonable exercise of discretion and affirm the
maintenance award.
Maintenance is addressed
to trial court discretion. Hefty
v. Hefty, 172 Wis.2d 124, 134, 493 N.W.2d 33, 37 (1992). We affirm the trial court's discretionary
decision if it reflects a reasoned approach based upon proper consideration of
law and articulates reasons for its conclusion. Enders v. Enders, 147 Wis.2d 138,
142, 432 N.W.2d 638, 640 (Ct. App. 1988).
Maintenance furthers two distinct objectives: support and fairness. Id. In reaching these objectives, the trial court is to consider the
relevant factors set out in § 767.26, Stats.,
on a case‑by-case basis. Kennedy
v. Kennedy, 145 Wis.2d 219, 223, 426 N.W.2d 85, 87 (Ct. App.
1988).
Here, the record
discloses a reasonable exercise of trial court discretion. The trial court observed that during the
thirty-four-year marriage, Kenneth worked outside the home while Patricia was
for the most part a homemaker with limited work experience outside the
home. It noted that her gross income
for the past few years approximated $3,000 per year. It concluded that one-half the parties' combined total income of
$1,303.43 equaled $651.71. These
findings are not clearly erroneous. See
§ 805.17(2), Stats. That figure, reduced by Patricia's monthly
income, supports the $400 per month maintenance award.
We conclude that the
record discloses a reasonable basis for using Patricia's net income instead of
her gross income. Patricia testified
that Kenneth pays no income tax on his social security disability income. Consequently, we conclude that it was
reasonable for the court to use Patricia's after tax earnings to calculate
maintenance. We further conclude that
the court adequately articulated its rationale. The trial court considered the
length of the marriage, the parties' ages and Kenneth's disability. These are appropriate factors. Section 767.26, Stats.
The court further
considered that Patricia earned approximately $3,000 per year. The court was not required to accept the
vocational expert's testimony that her earning capacity was substantially
higher, especially since another expert gave conflicting testimony. We defer to the trial court's assessment of
weight and credibility of evidence.
Section 805.17(2), Stats.
We further conclude that
the court's silence with respect to the effect of the property division and
Patricia's income generating assets is not reversible error because the court
effectuated an equal property division and both parties were awarded income
generating liquid assets. The divorce
judgment shows that Kenneth was awarded two IRA's valued at $7,061 and $18,340
respectively, as well as two bank accounts valued at $5,434 and $10,640
respectively. In addition, Patricia was
ordered to pay Kenneth cash to balance the property division in the sum of
$5,025.50. Although Patricia received
$12,000 in savings bonds not subject to division, Kenneth does not tell us what
income this asset is capable of generating.
In addition, Patricia's receipt of $100 per month from each of her sons
was offset by the expense of household groceries. Because the maintenance determination reflects a reasonable
exercise of discretion, we sustain it on appeal.
Next, Kenneth argues
that the trial court misused its discretion when it awarded Patricia the
residence. He does not dispute that the
property division was equal, but contends that his reasons for desiring the
house were more compelling than Patricia's.
For example, he argues that he built the house himself and has emotional
and practical reasons associated with retirement activities and his
disability. He argues that the trial
court erroneously premised its decision on the erroneous finding that his
sister lives next door to the Iron River cabin. He states that his sister owns the cabin next door but does not
live there. He further contends that
Patricia's reasons for wanting the house, relating to her now deceased mother
and social and church activities, did not relate to that particular house but
to living in Ashland in general.
The award of a marital
asset is particularly within the discretion of the trial court. Ably v. Ably, 155 Wis.2d 286,
289, 455 N.W.2d 632, 633 (Ct. App. 1990).
"[W]hen a matter is committed to the discretion of the trial judge
for determination, the judge has an appreciable latitude of choice of possible
decisions, that he has the duty carefully to weigh the data before him, and to
render a decision which he conscientiously thinks will promote the ends of
justice." McElroy, Some
Observations Concerning the Discretions Reposed in Trial Judges by the American
Law Institute's Code of Evidence, Model Code of Evidence 360 (1942).
Here, Kenneth does not
argue that the trial court had no reasons for his decision, only that his
reasons are better. We conclude that
the trial court's recitation of its rationale, including that Patricia wanted
to live near the hospital due to her heart problem, that her job is in Ashland,
and that both parties clearly had an emotional attachment to the house, making
it a difficult decision for the trial court, set out a reasonable basis for its
decision. We will not disturb its
determination on appeal.
Finally, Kenneth
challenges the court's decision to raise maintenance to $515 per month if he
elects to convert the legal separation to a divorce decree. The trial court based its decision on
Patricia's anticipated increased expenditure of health insurance premiums. We conclude that the court's decision, while
taking into account increased future needs of Patricia, failed to take into
account Kenneth's future ability to pay.
Kenneth testified that his monthly expenses were $1,502. His monthly income, consisting of $1,056,
social security disability, and $383 pension payment, will be reduced by the
$400 monthly maintenance payment to Patricia.
Also, the parties' future economic circumstances are unpredictable. Consequently, the analysis did not comport
with the fairness component required by LaRocque v. LaRocque, 139
Wis.2d 23, 32-33, 406 N.W.2d 736, 740 (1987).
A misapplication of the law amounts to an erroneous exercise of
discretion. State v. Hutnik,
39 Wis.2d 754, 763, 159 N.W.2d 733, 737 (1968). As a result, we overturn the trial court's order that
automatically increases maintenance without an examination of the parties'
circumstances at the time of the increase.
We observe that in the event either party's financial circumstances
change, requiring an adjustment in maintenance, the trial court may address the
issue in the future pursuant to § 767.32, Stats.
By the Court.—Judgment
affirmed in part and reversed in part.
No costs awarded on appeal.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.