Clabault v. Clabault, s. 91-0984
| Decision Date | 31 March 1992 |
| Docket Number | 91-1796,Nos. 91-0984,s. 91-0984 |
| Citation | 485 N.W.2d 838,168 Wis.2d 358 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In re the Marriage of Mary Ann CLABAULT, Petitioner-Respondent, v. James M. CLABAULT, Respondent-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from orders of the circuit court for Milwaukee County, Francis T. Wasielewski and Dominic S. Amato, Judges.
Before MOSER, P.J., and SULLIVAN and FINE, JJ.
In this consolidated appeal James M. Clabault appeals from an order by the Honorable Francis T. Wasielewski amending a judgment of divorce and from a subsequent order by the Honorable Dominic S. Amato interpreting and modifying the order of Judge Wasielewski. Clabault challenges the maintenance award and various related rulings on the discovery process, judicial recusal and attorney's fees. We affirm.
Mary Ann Clabault (Mary Ann) and James M. Clabault (James) were divorced after twenty-seven years of marriage. During the course of the marriage, James practiced law. For the majority of this period, he was employed as corporate counsel; six years prior to the divorce he became a full-time sole practitioner of plaintiffs' anti-trust law. During this latter period, his income shows significant fluctuation. On the other hand, as James' wife, Mary Ann performed mainly child-rearing and household management duties and, occasionally, performed secretarial work outside the home. Mary Ann currently works part-time, earning approximately $1,300 per month; she suffers from medical problems that prevent full-time work.
Following the initial judgment of divorce, James successfully appealed Judge Wasielewski's maintenance award. The court of appeals directed the trial court to "order maintenance based on a percentage of Mr. Clabault's income." 1 Judge Wasielewski's final order amending the judgment of divorce, which incorporated the court of appeals directive, was filed January 29, 1991. Subsequently, Mary Ann moved to have James held in contempt for an alleged failure to comply with the original property division and James filed an appeal to Judge Wasielewski's final order. Following scheduled judicial rotation, Judge Amato heard Mary Ann's contempt motion. Judge Amato filed written findings of fact, ordered the dismissal of Mary Ann's contempt motion, and ordered James to pay motion costs to Mary Ann's counsel in the amount of $250. James also appeals the order of Judge Amato.
On appeal, James raises eight issues. We will discuss these issues sequentially, where necessary providing additional pertinent facts in conjunction with our analyses.
On remand, Judge Wasielewski devised a formula to balance James' fluctuating, but potentially large, income with Mary Ann's steady, but smaller, income. James will pay maintenance "in an amount equal to 50% of his net earned income 2 which shall be payable within 30 days of its receipt." Mary Ann is required to reimburse James "within 30 days of the close of each calendar year" by paying the lesser of two amounts: one-half of her net earned income for the previous year or the total amount paid by James during that year.
A determination of maintenance is a discretionary decision of the trial court. LaRocque v. LaRocque, 139 Wis.2d 23, 27, 406 N.W.2d 736, 737 (1987). As such, the decision of the trial court will be upheld when the record shows a reasoned application of correct legal principles to facts of record. Gerth v. Gerth, 159 Wis.2d 678, 683-84, 465 N.W.2d 507, 510 (Ct.App.1990). Under Wisconsin law, the trial court begins with the reasonable assumption that the dependant partner may be entitled to fifty percent of the total earnings of both parties, Bahr v. Bahr, 107 Wis.2d 72, 84-85, 318 N.W.2d 391, 398 (1982), but considers statutorily enumerated factors, see sec. 767.26, Stats., to arrive at an ultimate award that meets the duel objectives of support and fairness, LaRocque, 139 Wis.2d at 31-33, 406 N.W.2d at 739.
James advances two arguments, which focus on an alleged failure to meet the fairness objection of LaRocque: (1) Mary Ann should bear the risks of litigation inherent in his contingent fee practice, and (2) she should not receive 50% of his income after her "unilateral" withdrawal of her "partnership" contributions to the marriage. James makes no allegations of incorrect fact-finding at this point, nor does he disagree with the law as stated by the trial court. Thus, we examine the rational application of the law to the facts by the trial court. We hold that since Mary Ann's monthly income is affected by James' "office expenses of all kinds," Mary Ann does in fact suffer the risks of income fluctuation inherent in the law practice. Thus, the trial court's award complies with the LaRocque fairness objective. Furthermore, this court has already considered, and rejected, the specific argument James here advances concerning the dependent spouse's contributions to the production of income and well-being of the principal wage-earner. Enders v. Enders, 147 Wis.2d 138, 148, 432 N.W.2d 638, 642 (Ct.App.1988). We are bound by the published decisions of this court. In re Court of Appeals, 82 Wis.2d 369, 371, 263 N.W.2d 149, 149-50 (1978).
James' third argument is that Judge Wasielewski's change from an award of one-third of James' imputed income (estimated at $90,000 per year) to one-half of his actual net income adjusted for Mary Ann's earnings violates both a "legislative mandate" and judicial precedent. Curiously, James supports his argument by citation to two cases in which Wisconsin appellate courts have specifically approved percentage maintenance awards. See Poindexter v. Poindexter, 142 Wis.2d 517, 523, 419 N.W.2d 223, 225 (1988) and Olson v. Olson, 148 Wis.2d 219, 222, 435 N.W.2d 266, 268 (Ct.App.1988). There is neither a legislative mandate nor judicial precedent prohibiting percentage maintenance awards. Poindexter, 142 Wis.2d at 529-30, 419 N.W.2d at 228 (interpretation of sec. 767.26, Stats.). Moreover, upon remand, Judge Wasielewski followed the direction of this court to base Mary Ann's maintenance award upon a percentage of James' income. Judge Wasielewski carefully explained that his earlier award of thirty percent was based upon his acknowledged use of James' imputed, rather than actual income, and had been designed to protect James from the risk of unfairness. Under the current award, which is based upon adjusted net income, James is not exposed to such risk. Therefore, we hold that the trial court stated a rational basis for its decision on the record, and that the award again complies with the fairness requirement of LaRocque.
On appeal, James asserts that the trial court improperly denied his request "to depose wife and to determine her current medical condition, and such other factors as would affect the appropriate setting of the maintenance percentage." At the hearing on the discovery request and protective order, James stated "What I seek in this deposition is merely to inquire into the areas that are set forth in the statute [sec. 767.26, Stats.] and in the decided case." In response, the trial court noted that, with respect to Mary Ann's
impaired earning capacity and present medical condition[,] ... these were matters that were fully tried. Although they were fully tried two and a half years ago, the parties nonetheless had the opportunity to go into them in great detail at that time.... And that trial record having been made, the Court was reluctant to allow full discovery and a full trial, retrial of something on which evidence had already been taken.
The medical status of Mary Ann had been the subject of fact-finding by the trial court that has been upheld on appeal. Clabault v. Clabault, Nos. 89-0872 and 89-1239, unpublished slip op. (Wis.Ct.App. May 8, 1990) at 2. On remand, the trial court had ordered that three medical reports be prepared and submitted to James. At the hearing, one apparently acceptable report was submitted, one cursory report was submitted 3 and one report was missing. Judge Wasielewski stated:
[i]f the reports had indicated that there had been some substantial change in circumstances, this court would be bound then to take appropriate action and that action might well include allowing some discovery to be taken....
I'm satisfied from the medical reports, both the one that has been read here by [James] and the other report which has been submitted by [Mary Ann], that there has not been a substantial change in circumstances on these questions.
Upon remand, Judge Wasielewski found as matters of fact that Mary Ann's medical condition "has shown some change since the time of trial, but this is not of a substantial nature so as to remove the fact of her medical condition as one of the underpinnings for her impaired earning capacity."
The trial court controls the methods and scope of discovery. Sections 804.01(1) & (2), Stats. Issuance of a protective order to prevent deposition of a party is within the sound discretion of the trial court, thus limiting our review to whether such discretion, discussed supra, was properly exercised. State v. Beloit Concrete Stone Co., 103 Wis.2d 506, 511, 309 N.W.2d 28, 30 (Ct.App.1981) sec. 804.01(3)(a), Stats. If medical experts from three different specialties originally testified that Mary Ann was not able to work full-time, it does not necessarily follow that improvement of one of her ailments will enable her to work more hours. 4 When one medical expert stated that her condition was still such that she could not return to work full time, he provided a sufficient factual basis for Judge Wasielewski's decision. Thus, in this case there are facts of record, a correct statement of the...
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