Fobes v. Fobes, 83-1640

• Decision Date: 29 May 1985
• Docket Number: No. 83-1640,83-1640
• Citation: 368 N.W.2d 643,124 Wis.2d 72
• Parties: , 62 A.L.R.4th 169 Clarice V. FOBES, Petitioner-Respondent, v. Arnold E. FOBES, Appellant. *
• Court: Wisconsin Supreme Court

Page 643

368 N.W.2d 643

124 Wis.2d 72, 62 A.L.R.4th 169

Clarice V. FOBES, Petitioner-Respondent, v. Arnold E. FOBES, Appellant. ^* No. 83-1640.

Supreme Court of Wisconsin.

Argued April 29, 1985.

Decided May 29, 1985.

Jeffrey W. Younger (argued), and Donald D. Johnson, Lee, Johnson, Kilkelly & Nichol, S.C., Madison, on brief, for appellant.

John M. Ullsvik (argued), and Niemann, Hibbard, Ullsvik, Neuberger & Lorenz, Watertown, on brief, for petitioner-respondent.

CALLOW, Justice.

This is an appeal from an order of the circuit court for Dodge county modifying the terms of a divorce judgment with respect to maintenance payments. The appeal was certified by the court of appeals and accepted by this court pursuant to sec. (Rule) 809.61, Stats., 367 N.W.2d 225 (Wis.1985). We affirm the circuit court.

The issue presented on appeal is whether a divorce judgment incorporating a stipulation entered into by the parties providing for limited term maintenance may be modified by the circuit court.

Clarice and Arnold Fobes were married on January 28, 1961, and the divorce action was commenced on January 18, 1980. At the time the action was commenced, Mrs. Fobes was fifty-three years of age and Mr. Fobes, fifty-four. The parties had one son sixteen years of age. Mr. Fobes was the general manager of the Pepsi-Cola plant in Watertown. Mrs. Fobes had a high school education and had not worked outside of the home since 1963. At the time of the divorce, Mrs. Fobes was being treated for arthritis and for an allergy which caused her eyes to water.

On August 26, 1980, the parties entered into a stipulation regarding property division and maintenance payments. The stipulation contained a provision for maintenance which stated:

"The respondent or his estate shall pay to the petitioner as and for family maintenance the sum of $250.00 per week, through the office of the Clerk of Courts for Dodge County, Wisconsin, commencing on the Monday immediately following the granting of the divorce. Said family maintenance shall continue for a period of three (3) years or until the death of petitioner or remarriage of the petitioner, whichever occurs first. The aforesaid award of family maintenance is for the purpose of providing income to the petitioner so that she might secure the necessary education to become employable."

Mrs. Fobes received approximately 60 percent, or $50,000, of the marital property. Part of the property awarded to Mrs. Fobes was the parties' home, in which there was approximately $40,000 equity. The divorce was granted on August 28, 1980, and the judgment of divorce incorporated the terms of the stipulation.

In 1980, Mrs. Fobes enrolled in a two-year course in social work at a technical school in Watertown. After completing one year in this course, she concluded that she would be unable to secure employment in the social work field. In 1981 she enrolled in a nursing assistant course in Fort Atkinson. After completing that course, she enrolled in a one-year program in Fort Atkinson to become a licensed practical nurse. While she successfully completed the classroom portion of the program, she received a grade of incomplete because she did not complete the required one-week practicum at Fort Atkinson Memorial Hospital. Mrs. Fobes stated that the reason she did not complete the practicum was that she could not stand the pressure of caring for four patients at one time. She has not attempted to repeat the practicum since she failed to complete it in 1982, and does not intend to do so.

In January, 1983, Mrs. Fobes began to seek employment as a private nurse. She registered with a number of placement agencies in Milwaukee, and from January through April, 1983, she worked as a private nurse between one day and thirteen and a half days a month. To cut down on the commuting time involved in eight-hour work days, she chose to work shifts where she would stay in the patients' homes for a twenty-four-hour period. For the period between January 1, 1983, and May 2, 1983, Mrs. Fobes earned a total of $1,135.15 from her private nursing activities.

On April 4, 1983, Mrs. Fobes filed a motion to modify the judgment of divorce with regard to the maintenance payments. In her motion, Mrs. Fobes stated that, although she had diligently attempted to educate and train herself to become self-supporting, she had been unsuccessful in doing so, and unless Mr. Fobes' duty to pay maintenance was continued past the scheduled August, 1983, termination date, she would have no source of income. The motion also stated that Mr. Fobes had a substantial increase in income since the time the divorce was granted and was able to continue maintenance payments indefinitely.

Testimony was taken from both parties at a motion hearing held on May 11, 1983. The court issued a memorandum decision on August 8, 1983. The court held that it had the "power and authority" to revise the stipulated terms of a divorce judgment. The court noted that, before a divorce judgment incorporating the terms of a stipulation may be modified, there must be a substantial or material change in circumstances such that it would be unjust to hold either party strictly to the terms of the judgment. The court found that Mrs. Fobes was a credible witness and was not a malingerer. The court also found she had the ability to earn approximately $283 per month. The court concluded that Mrs. Fobes required permanent maintenance, and this required that the divorce judgment be amended. The court noted that some of Mrs. Fobes' claimed monthly expenses seemed high and that no record had been made on Mr. Fobes' ability to pay maintenance. A further hearing was scheduled to determine Mrs. Fobes' needs and Mr. Fobes' ability to pay. Until the time of the further hearing, maintenance was to continue at the rate provided in the judgment.

An order was entered on August 15, 1983, modifying the divorce judgment to provide that Mrs. Fobes receive permanent maintenance in the amount of $250 per week until such time as it was modified by the court. Mr. Fobes filed a notice of appeal on August 26, 1983. We accepted the certification of the appeal by the court of appeals on February 5, 1985.

The issue presented is whether a circuit court has the authority to modify a provision in a divorce judgment providing for limited term maintenance where the parties had stipulated to the terms of the original maintenance provision.

Section 767.32, Stats., sets forth the circumstances under which a divorce judgment may be revised. That section states, in relevant part:

"(1) After a judgment providing for ... maintenance payments under s. 767.26 ... the court may, from time to time, on the petition of either of the parties, ... revise and alter such judgment respecting the amount of such maintenance ... and the payment thereof, ... and may make any judgment respecting any of the matters which such court might have made in the original action, except that a judgment which waives maintenance payments for either party shall not thereafter be revised or altered in that respect nor shall the provisions of a judgment with respect to final division of property be subject to revision or modification."

On its face, sec. 767.32, provides that circuit courts have the authority to modify divorce judgments with respect to maintenance payments upon petition of either party so long as the modification could have been ordered by the court at the time of the divorce. Only if maintenance has been waived and such waiver has been incorporated into the judgment is the court foreclosed from revising the judgment with respect to maintenance.

In Dixon v. Dixon, 107 Wis.2d 492, 319 N.W.2d 846 (1982), this court was called upon to decide whether an award of limited maintenance could be modified when the original judgment had provided that the limited maintenance payments would not be increased or decreased by virtue of any change in the economic circumstances of either party. Id. at 506, 319 N.W.2d 846. Following a trial, the court had ordered Mr. Dixon to pay Mrs. Dixon maintenance in the amount of $500 per month for thirty months. Id. at 495, 319 N.W.2d 846. Mrs. Dixon asserted that the divorce judgment's prohibition against modification violated sec. 767.32, Stats., which expressly authorizes a court to revise a judgment providing for maintenance payments. Id. at 506, 319 N.W.2d 846. Mr. Dixon argued that, if alteration of limited maintenance payments were allowed, a significant distinction between limited and indefinite maintenance would be lost. Id. at 507, 319 N.W.2d 846.

We stated that prohibiting modification of limited maintenance does provide certainty to the parties and curtails the number of future court hearings. Id. However, we noted that "[t]here is nothing ... in sec. 767.32 to indicate that the legislature intended the goals of economic certainty and reduced litigation to be achieved at the expense of spouses whose needs might change after judgment is entered." Id. at 508, 319 N.W.2d 846. We held that sec. 767.32 allows the circuit court to revise and alter a judgment respecting the amount and terms of payment of limited maintenance so long as the petition seeking revision is filed prior to the termination date of limited maintenance under the judgment. Id.

Dixon involved an appeal of a provision regarding maintenance which was ordered by the circuit court. It did not involve a stipulation between the parties. Mr. Fobes asserts that our decision in this case should rest on our holding in Marriage of Rintelman v. Rintelman, 118 Wis.2d 587, 348 N.W.2d 498 (1984). The issue presented in Rintelman was whether a provision in a divorce judgment incorporating a stipulation which provided for maintenance payments for the lifetime of the payee violated either sec. 767.32(3), Stats., or public policy when it was understood by the parties that payment would continue even if the payee remarried. Sec. 767.32(3)...