IN RE MARRIAGE OF FINLEY v. Finley

• Decision Date: 30 May 2002
• Docket Number: No. 01-1705.,01-1705.
• Citation: 2002 WI App 144,256 Wis.2d 508,648 N.W.2d 536
• Parties: IN RE the MARRIAGE OF: Patricia A. FINLEY, Petitioner-Respondent-Cross-Appellant, v. James J. FINLEY, Respondent-Appellant-Cross-Respondent.
• Court: Wisconsin Court of Appeals

256 Wis.2d 508

2002 WI App 144

648 N.W.2d 536

IN RE the MARRIAGE OF: Patricia A. FINLEY, Petitioner-Respondent-Cross-Appellant, v. James J. FINLEY, Respondent-Appellant-Cross-Respondent.

No. 01-1705.

Court of Appeals of Wisconsin.

Submitted on briefs February 12, 2002.

Decided May 30, 2002.

On behalf of the respondent-appellant-cross-respondent, the cause was submitted on the briefs of John H. Short of Vance, Wilcox, Short & Short, S.C., Fort Atkinson.

On behalf of the petitioner-respondent-cross-appellant, the cause was submitted on the briefs of J. Paul Neumeier, Jr. and Raymond E. Krek of Krek & Associates, S.C., Jefferson.

Before Vergeront, P.J., Roggensack and Lundsten, JJ.

¶ 1. VERGERONT, P.J.

James Finley appeals the judgment of divorce from Patricia Finley challenging the award of maintenance to Patricia, certain restrictions on the electrical work he may do outside of his full-time job, and certain aspects of the property division. Patricia cross-appeals contending that the circuit court erroneously exercised its discretion in not imputing to James income from moonlighting work based on his past moonlighting, and erred in several other rulings in setting maintenance, in dividing the property, and in setting child support.

¶ 2. We conclude the court properly exercised its discretion in deciding not to impute income to James based on his past moonlighting work and in awarding Patricia $50 a month in maintenance. However, we are unable to determine whether the court properly exercised its discretion in ordering that James pay 50% of his net profits from moonlighting to Patricia as maintenance and in restricting the moonlighting work James may do for free. With respect to the other challenges on the appeal and cross-appeal, we conclude the court committed no errors of law and properly exercised its discretion. We therefore affirm in part, reverse in part, and remand.

BACKGROUND

¶ 3. James and Patricia were married on March 31, 1978, and were fifty-five and forty-six, respectively, at the time of the divorce hearing. They had three children, who at the time of the divorce hearing were twenty-one, eighteen, and fifteen. The fifteen-year-old child was living with Patricia, and the parties stipulated to joint legal custody and primary placement with Patricia.

¶ 4. When they married, both Patricia and James had high school diplomas; Patricia had also completed three years of nursing school, receiving a registered nurse diploma. Patricia worked steadily during the marriage at Watertown Memorial Hospital, her hours and assignments varying over the years. The court found that at the time of the divorce, she was working in the surgery unit, three eight-hour days per week and an additional sixteen hours per week on call. Her pay was $20.61 per hour for the hours she worked, plus an additional $1.75 per hour for being on call even if she did not go into work. The court found her income to be $35,000 per year. James is a journeyman electrician and earns $19 per hour at Wilke Electric. In addition, he had a long history of doing electrical work on the side, mostly for cash. The parties stipulated that James had averaged 624 hours per year in moonlighting work. The court found that some of that work was on the parties' residence. James testified that at the time of the divorce he was not doing any moonlighting. The court found his income from his employment at Wilke Electric to be $45,018 in 1999, and found there was no reason to expect his income to decrease in 2000 or 2001. To that figure, the court added $500, finding that James earned that additional amount per year selling scrap copper wire.

¶ 5. The issues of maintenance, child support, and certain aspects of the property division were tried to the court. In determining James's income for purposes of maintenance and child support, the court did not impute income to James for moonlighting. The court ordered James to pay 17% of $45,518 in child support, rejecting Patricia's argument that he should pay more because he spent very little time with their minor child.

¶ 6. In determining Patricia's income for the purpose of maintenance, the court used her current earnings, finding that they reflected her earning capacity. With respect to Patricia's expenses, the court found certain ones to be excessive. It also eliminated monthly payments on a lease for a new car for their middle son, finding that Patricia unilaterally made that decision and their son already had the use of a car that was adequate. The court did not include in her budget college savings for the two younger sons. The court ordered James to pay Patricia $50 per month in maintenance.

¶ 7. With respect to any future moonlighting James did, the court ordered James to pay on a semiannual basis 50% of the net profits to Patricia as maintenance. It imposed detailed recording and reporting requests and also prohibited James from doing any moonlighting work for free other than for his parents, siblings, spouse, and children, and only then on property owned by that family member. The judgment provided that if the court obtained information that James did any moonlighting work or received any form of compensation for moonlighting work which was not reported as required, the court would request the district attorney's office to initiate prosecution for criminal contempt.

¶ 8. The court awarded an equal division of the marital estate, with each party receiving approximately $170,935.50 worth of property; this required an equalizing payment from James of $13,582.50.¹ The court rejected James's contention that his equitable IRA account should be excluded from the property division as inherited property; it also rejected Patricia's requests that she receive a credit for post-separation contributions to her retirement account and that the car lease obligation be divided.

DISCUSSION

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¶ 9. The division of the marital estate, the decision whether to award maintenance, and, if so, how much, and the amount of child support are all committed to the circuit court's discretion. Hokin v. Hokin, 231 Wis. 2d 184, 190, 605 N.W.2d 219 (Ct. App. 1999). We affirm a circuit court's discretionary decision if the court applies the correct legal standard to the facts of record and in a reasoned manner reaches a rational result. Id. We accept all findings of fact made by the circuit court unless they are clearly erroneous. WIS. STAT. § 805.17(2) (1999-2000).²

I. Maintenance

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¶ 10. In deciding whether to award maintenance, and, if so, for how long and in what amount, the court is to consider the factors in WIS. STAT. § 767.26,³ which are designed to further two objectives: support and fairness. Hokin, 231 Wis. 2d at 200-01. The former ensures the spouse is supported in accordance with the needs and earning capacities of the parties; the latter ensures a fair and equitable arrangement between the parties in each individual case. Id.

¶ 11. James contends the circuit court erroneously exercised its discretion in awarding maintenance because: (1) it used Patricia's actual earnings rather than what she could earn if she worked full time; (2) it based the award of $50 a month solely on the disparity in the parties' incomes; (3) it provided no rationale for splitting his net profits from moonlighting 50/50; and (4) the effect of the order on future moonlighting is to prescribe how he may use his free time. Patricia, on the cross-appeal, contends the court erroneously exercised its discretion by: (1) not imputing moonlighting income to James; (2) not including in her budget the lease payment for the new car for their middle son; (3) not including in her budget college savings for their two younger sons; and (4) not ordering maintenance retroactive to the date of the temporary order. We address related issues together, rather than separating them by appeal and cross-appeal.

James's and Patricia's Earning Capacities

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¶ 12. Each party argues that the court should impute income to the other because the other is not working at earning capacity. The court may consider a party's earning capacity rather than actual earnings when determining a party's obligation for maintenance and child support, Sellers v. Sellers, 201 Wis. 2d 578, 587, 549 N.W.2d 481 (Ct. App. 1996); and the earning capacity of the party seeking maintenance is a factor to consider in awarding maintenance, WIS. STAT. § 767.26(5). [6]

¶ 13. We conclude the circuit court properly exercised its discretion in basing maintenance on Patricia's actual earnings, rather than what she could earn if she worked forty hours every week. The court determined that she was not shirking and was working at her earning capacity. The court found she was working an amount consistent with what she had done in the past, and it credited her testimony that she felt this was all she could handle. Patricia testified that she did not believe she could work more hours given her responsibilities at home, the stress of working in the surgery unit, and her depression, for which she was taking medication. The court's decision on this point was supported by the record and was reasonable.

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¶ 14. Similarly, we conclude the circuit court properly exercised its discretion in not imputing income to James for moonlighting work. James testified that he was no longer doing moonlighting at the time of the divorce, giving as reasons that he had more domestic chores to do since he was living by himself and he was visiting a sister who was ill. He also indicated he did not want to have to share moonlighting income, but said even if he did not have to share it, he did not know if he would do it any more. The court carefully considered Patricia's arguments that it should impute moonlighting income to James, and it gave a number of reasons for its decision not to do so: James's age of fifty-five; his testimony that he was beginning to feel the physical effects of his age; the physical...