Greenwald v. Greenwald

• Decision Date: 19 May 1993
• Docket Number: No. 92-1167,92-1167
• Citation: 503 N.W.2d 21,177 Wis.2d 619
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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 Josephine M. GREENWALD, Petitioner-Appellant-Cross Respondent, v. Darwin P. GREEENWALD, Respondent-Respondent-Cross Appellant.
• Court: Wisconsin Court of Appeals

Page 21

503 N.W.2d 21

177 Wis.2d 619

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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 Josephine M. GREENWALD,

Petitioner-Appellant-Cross Respondent,

v.

Darwin P. GREEENWALD, Respondent-Respondent-Cross Appellant.

No. 92-1167.

Court of Appeals of Wisconsin.

May 19, 1993.

Before NETTESHEIM, P.J., and ANDERSON and SNYDER, JJ.

PER CURIAM.

Josephine M. Greenwald appeals from a judgment entered on February 13, 1992 and an order entered on March 26, 1992. The issues are: (1) whether the circuit court should have awarded Josephine maintenance; and (2) whether the circuit court should have ordered Darwin P. Greenwald, Josephine's former husband, to pay all of Josephine's attorney's fees. We conclude that the circuit court acted within its discretion and affirm.

Darwin cross-appeals. He argues that the circuit court erred in failing to implement a stipulation made in a temporary order prior to the divorce. We affirm the cross-appeal.

Darwin and Josephine Greenwald married in 1983. An action for divorce was filed in 1985 and a judgment of divorce was entered in 1989. Darwin is now ninety years old and Josephine is seventy-eight. Both have illnesses resulting from aging, but Josephine is in far better health and remains active.

During the divorce proceedings, Josephine sought to invalidate a premarital agreement the parties had made. The circuit court reformed the agreement and entered a property division accordingly. The court did not award Josephine maintenance. On appeal this court reversed, ruling that the agreement was enforceable and remanding for a new property division in accordance with the agreement. Greenwald v. Greenwald, 154 Wis.2d 767, 454 N.W.2d 34 (Ct.App.1990). On remand, the circuit court divided the property according to the terms of the premarital agreement and again declined to award Josephine maintenance. The court ordered Darwin to contribute $20,000 toward Josephine's $42,000 attorney's fees.

Josephine first argues that the circuit court should have awarded her maintenance. An award of maintenance is addressed to the discretion of the circuit court. Weberg v. Weberg, 158 Wis.2d 540, 546, 463 N.W.2d 382, 384 (Ct.App.1990). A discretionary determination must be "the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination." Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20 (1981). We need not agree with the circuit court's discretionary decision to sustain it. Weberg, 158 Wis.2d at 546, 463 N.W.2d at 384.

Section 767.26, Stats., enumerates factors the court is to consider in setting maintenance. These factors are designed to further the related objectives in the award of maintenance: "to support the recipient spouse in accordance with the needs and earning capacities of the parties (the support objective) and to ensure a fair and equitable financial arrangement between the parties in each individual case (the fairness objective)." LaRocque v. LaRocque, 139 Wis.2d 23, 33, 406 N.W.2d 736, 740 (1987).

The court considered the short duration of the marriage, the age and health of the parties, Josephine's earning capacity, the feasibility of her becoming self-supporting, the tax consequences to each party of a maintenance award, the fact that the premarital agreement did not address postdivorce spousal maintenance, and the property division. The court found that Josephine is in far better health than Darwin, and is and has been fully capable of continuing the employment which she had prior to her marriage. The court further found that the parties contemplated the disparity in the property division in their premarital agreement, that Josephine had made no significant contributions to Darwin's estate during the marriage, and that Josephine had "not been truthful in the disclosure of her assets" and had "burned her bank records." The court further found that Josephine's needs are $1200 per month, that "her testimony as to her assets and income [is] extremely dubious and she apparently enjoys income at [the level of her needs]," and that Josephine's standard of living has improved since she left Darwin and became employed. Based on these findings, the court concluded that Josephine was not entitled to maintenance.

Josephine argues that she should have been awarded maintenance on remand because one of the reasons she was not initially awarded maintenance is the income she would have received from the initial property division. Josephine overlooks the fact that on remand the circuit court conducted further proceedings and made factual findings. Among other things, the circuit court found that Josephine's testimony about her assets and income was not credible, and that her income met her needs. Maintenance is not to be ordered simply on the basis of one party's ability to pay or on the basis of disparity of income. See Harris v. Harris, 141 Wis.2d 569, 579, 415 N.W.2d 586, 591 (Ct.App.1987); Kennedy v. Kennedy, 145 Wis.2d 219, 222-23, 426 N.W.2d 85, 86-87 (Ct.App.1988). Based on the factual findings made on remand, the circuit court acted reasonably and in accordance with the law in not awarding maintenance. See Hartung, 102 Wis.2d at 66, 306 N.W.2d at 20.

Josephine argues that the circuit court erred in finding that she was not employable in the initial judgment but on remand finding that she was. On remand, the court found that she was working as a companion in exchange for room and board and that she will be able to continue this...