In re Marriage of Hong v. Hong, No. 2007AP2797 (Wis. App. 12/30/2008)

Decision Date30 December 2008
Docket NumberNo. 2007AP2797.,2007AP2797.
PartiesIn re the Marriage of: Glen C. Hong, Petitioner-Appellant, v. Annette R. Hong n/k/a Annette R. Christopher, Respondent-Respondent.
CourtWisconsin Court of Appeals

APPEAL from an order of the circuit court for Jackson County: GERALD W. LAABS, Judge. Affirmed.

Before Higginbotham, P.J., Dykman and Bridge, JJ.

¶ 1 PER CURIAM.

Glen Hong appeals from an order that denied his motion to terminate maintenance payments to his ex-wife, Annette Christopher, and found him in contempt for failing to make any payments to her for the preceding two years. We affirm for the reasons discussed below.

BACKGROUND

¶ 2 Hong and Christopher were divorced in 2001, pursuant to a marital settlement agreement. Hong was to pay Christopher $25,000 to equalize a property division in which Hong received the bulk of the parties' assets and debts, including an ongoing construction and excavation business. The divorce judgment also reserved the issue of maintenance as to Christopher "until such time as her name is removed from all outstanding indebtedness, and the outstanding marital obligations assigned to Glenn Hong have no adverse affect on her ability to secure credit."

¶ 3 Hong discharged the $25,000 equalization payment in bankruptcy in 2002, without having made any payment to Christopher. In addition, a number of creditors pursued Christopher following the bankruptcy for debts that had been solely assigned to Hong in the divorce, and she discovered that her credit report listed those debts as hers. As a result, Christopher made some payments on the outstanding debts to maintain her own accounts, and was unable to obtain credit to start her own business. She finally moved for maintenance in 2005.

¶ 4 The court decided that it was appropriate to award maintenance due to Hong's failure to comply with the relevant provisions of the marital settlement agreement, which in turn led to an inequitable property division. The court noted that the marriage had lasted fifteen years; that Hong was forty-six while Christopher was thirty-eight, and that both parties had high school diplomas. The court found that Hong was unemployed and not actively seeking employment, but that he was employable as a heavy-duty-equipment operator, and should be able to earn something in the range of the $4,166 per month that he was earning at the time of the divorce. It also found that Christopher was earning about $13,000 per year and had some disabilities that limited her employment opportunities, but was pursuing additional education which could allow her to become self-supporting within ten years. The court then ordered Hong to pay Christopher maintenance in the amount of $1,000 per month for ten years.

¶ 5 The following year, Christopher sought contempt sanctions to compel compliance with the maintenance order. Hong responded with a motion to terminate maintenance. Following a joint motion hearing held in 2007, the court refused to terminate maintenance and found Hong in contempt. It sentenced him to sixty days in jail unless he made a payment of $4,000 within thirty days. Hong appeals.

STANDARD OF REVIEW

¶ 6 "In order to modify a maintenance award, the party seeking modification must demonstrate that there has been a substantial change in circumstances warranting the proposed modification." Rohde-Giovanni v. Baumgart, 2004 WI 27, ¶30, 269 Wis. 2d 598, 676 N.W.2d 452; see also WIS. STAT. § 767.59 (2005-06).1 We will uphold the trial court's discretionary determination as to whether there has been a substantial change in circumstances "if there is a reasonable basis in the record for the trial court's decision." Cashin v. Cashin, 2004 WI App 92, ¶44, 273 Wis. 2d 754, 681 N.W.2d 255.

¶ 7 We also review the trial court's use of its contempt powers under the erroneous exercise of discretion standard. City of Wis. Dells v. Dells Fireworks, Inc., 197 Wis. 2d 1, 23, 539 N.W.2d 916 (Ct. App. 1995).

DISCUSSION
Modification of Maintenance

¶ 8 In the typical case, the focus of the substantial change inquiry will "be on any financial changes the parties have experienced." See, e.g., Rohde-Giovanni, 269 Wis. 2d 598, ¶30. However, the court also "should consider fairness to both of the parties under all of the circumstances." Id., ¶32. "In the context of a motion for modification of a limited-term maintenance agreement, the court should also consider the purposes of awarding maintenance for that limited term" and whether the intended goal has been accomplished. Cashin, 273 Wis. 2d 754, ¶41.

¶ 9 Here, the purpose of the maintenance award was to compensate Christopher for what turned out to be a vastly unequal property division and to allow Christopher an opportunity to obtain the education and training she would need to become self-supporting. Neither goal had been accomplished since entry of the prior maintenance order. Not only did Hong fail to make a single maintenance payment, but Christopher testified that she had been unable to continue her education without proof of her maintenance income. Christopher also testified that she had to pay 24% interest on a car loan due to her ongoing credit problems following Hong's bankruptcy, and had been unable to get a favorable percentage rate to buy property or get a school loan.

¶ 10 Turning to the other financial circumstances of the parties, Hong first contends that the trial court erroneously failed to consider that Christopher's 2006 tax return showed her income had increased by about $6,000 from the $13,000 she was making at the time of the last order. Christopher testified, however, that she had just started a new job where she was working thirty-two hours a week at $9.57 per hour, which would amount to just under $16,000 per year. We are satisfied that testimony showing a $3,000 increase in Christopher's income supports the trial court's finding that "her financial situation isn't really any different substantially than it was at the time of the divorce."

¶ 11 Meanwhile, Hong's actual income had increased from a negative $26,000 per year to a positive $12,000 per year, meaning that the gap between the parties' actual income had narrowed by $35,000 in Hong's favor since the last order. The court did not base its view of the parties' relative financial positions on Hong's actual income, however, but rather on his imputed income. In 2005, the court had found that Hong was not looking for work, but was capable of earning nearly $50,000 per year as a heavy equipment operator, which was the amount he was actually earning at the time of the divorce. Although Hong was again doing some excavating work as a self-employed contractor in 2007, the court found that Hong was still not diligently seeking work up to the level of his earning capacity.

¶ 12 Hong contends that the evidence at the modification hearing was insufficient to show that he could earn nearly $50,000 per year. Hong's earning capacity was a factual determination made at the time of the initial maintenance award, however. He could not merely relitigate whether the trial court had set his earning capacity too high. See Rohde-Giovanni, 269 Wis. 2d 598, ¶30. Rather, in order to show a substantial change in circumstances, he would need to show that something had changed with respect to his earning capacity, such as a disability or a downturn in the excavation market. He offered no such evidence.

¶ 13 Furthermore, the court's finding of shirking was supported by Hong's testimony that he had not applied for any...

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