Ebben v. Ebben
| Decision Date | 28 October 1998 |
| Docket Number | No. 98-0285,98-0285 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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 Jean M. EBBEN, Petitioner-Appellant, v. Gary J. EBBEN, Respondent-Respondent. |
| Court | Wisconsin Court of Appeals |
APPEAL from an order of the circuit court for Kenosha County: MARY KAY WAGNER-MALLOY, Judge. Affirmed.
Before SNYDER, P.J., BROWN and ANDERSON, JJ.
Jean M. Ebben appeals from an order granting Gary J. Ebben's motion to reduce maintenance. She challenges the circuit court's finding that Gary's inability to obtain employment at the salary level contemplated at the time the parties stipulated to the amount of maintenance was a substantial change of circumstances. We affirm the order.
After nearly twenty-three years of marriage, the parties were divorced on July 11, 1995. The judgment was entered in the State of Illinois and incorporated the parties' Marital Settlement Agreement. The parties stipulated that Gary would pay Jean monthly maintenance of $2700.
In November 1996, Gary moved to reduce maintenance on the grounds that his employment status had changed. 1 The circuit court found that: shortly before the divorce Gary's income went from $125,000 per year to $54,000 per year; Gary agreed to pay $2700 per month maintenance because at the time of the divorce he was engaged in a job search which he believed would result in comparable employment at the higher salary he had previously earned; Gary has not found comparable employment and would not be able to do so in the near future, and Gary earned $50,000 in 1995 and $37,000 in 1996. The court found a substantial change of circumstances and reduced maintenance to one-half of Gary's adjusted gross income, but not less than $1500 nor more than $2700 per month.
The trial court may modify a maintenance award only upon a positive showing of a substantial change in the financial circumstances of the parties. See Haeuser v. Haeuser, 200 Wis.2d 750, 764, 548 N.W.2d 535, 541-42 (Ct.App.1996). A substantial change in circumstances should be such that it would be unjust or inequitable to strictly hold either party to the original maintenance award. See Rosplock v. Rosplock, 217 Wis.2d 22, 33, 577 N.W.2d 32, 37 (1998). The first step in a substantial change analysis is a factual inquiry. See Eckert v. Eckert, 144 Wis.2d 770, 774, 424 N.W.2d 759, 761 (Ct.App.1988). It involves a comparison of the facts when the maintenance order was entered with the present facts. See Licary v. Licary, 168 Wis.2d 686, 692, 484 N.W.2d 371, 374 (Ct.App.1992). The circuit court's factual determinations regarding the "before" and "after" circumstances will not be overturned unless clearly erroneous. See Rosplock, 217 Wis.2d at 33, 577 N.W.2d at 37.
Jean argues that the circuit court looked back to the wrong thing when determining the "before" circumstances. Jean points out that at the time the maintenance stipulation was made, Gary was earning $49,500. She contends that the circuit court should not have looked at what Gary's income was seven months before the stipulation was made.
The maintenance award was not the result of a trial as to Gary's income or earning capacity. Neither the judgment of divorce nor the stipulation contains a finding of Gary's income at the time of the divorce. In determining whether a change in circumstances has occurred, a "critical point is whether the trial court took the factor alleged to have changed into account when it made its initial decision." Enders v. Enders, 147 Wis.2d 138, 146, 432 N.W.2d 638, 641 (Ct.App.1988). Where, as here, the parties themselves reconcile the competing factors affecting maintenance, the thinking behind the stipulation is relevant and critical to determining whether the purpose of the stipulation has been satisfied. See Rosplock, 217 Wis.2d at 34, 577 N.W.2d at 38. Thus, the circuit court properly considered evidence that the stipulation was based on the parties' belief that Gary would obtain comparable high-paying employment. 2
The circuit court's finding that the stipulation was based on the premise that Gary would find comparable higher-paying employment is not clearly erroneous. Gary testified that even while the divorce was pending, he was attempting to find a comparable job. He indicated that he believed he would find a job that paid him $75,000 to $90,000 and that perhaps he was nave about a man of his age finding a comparable position. Jean did not dispute Gary's testimony except to say that the $2700 maintenance figure came from an examination of her budget prepared by Gary at the time of the divorce. We are required to give due regard to the opportunity of the circuit court to resolve conflicts in the testimony which requires assessing the credibility of the witnesses. See Hughes v. Hughes, 148 Wis.2d 167, 171, 434 N.W.2d 813, 815 (Ct.App.1988).
Having determined that the circuit court's finding that the stipulation was based on an anticipated increase in Gary's income, it follows that Gary's failure to obtain the anticipated employment was a change of circumstance. Although the determination of whether the changed circumstances are substantial is a legal conclusion, we give weight to the circuit court's conclusion because it is intertwined with factual findings. See Harris v. Harris, 141 Wis.2d 569, 574, 415 N.W.2d 586, 589 (Ct.App.1987). That the change is substantial is illustrated by the fact that the maintenance award uses up over 80% of Gary's present income.
Jean argues that the circuit court erroneously exercised its discretion in setting the new maintenance payment. When modifying maintenance awards, the circuit court must consider the same factors governing the original determination of maintenance set forth in § 767.26, STATS. See Poindexter v. Poindexter, 142 Wis.2d 517, 531, 419 N.W.2d 223, 229 (1988). We look to the court's explanation of the reasons underlying...
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