IN RE MARRIAGE OF ROHDE-GIOVANNI v. Baumgart

• Decision Date: 25 March 2004
• Docket Number: No. 01-3014.,01-3014.
• Citation: 676 NW 2d 452,2004 WI 27
• Parties: In re the Marriage of: Linda Rohde-Giovanni p/k/a Linda Susan Baumgart, Petitioner-Appellant-Petitioner, v. Paul Albert Baumgart, Respondent-Respondent.
• Court: Wisconsin Supreme Court

2004 WI 27

676 NW 2d 452

In re the Marriage of: Linda Rohde-Giovanni p/k/a Linda Susan Baumgart, Petitioner-Appellant-Petitioner, v. Paul Albert Baumgart, Respondent-Respondent.

No. 01-3014.

Supreme Court of Wisconsin.

Oral Argument: January 14, 2004.

Opinion Filed: March 25, 2004.

For the petitioner-appellant-petitioner there were briefs by Linda Roberson, Anthony J. Lucchesi, and Balisle & Roberson, S.C., Madison, and oral argument by Linda Roberson.

For the respondent-respondent there was a brief by Stephen C. Beilke and Murphy Desmond, S.C., Madison, and oral argument by Stephen C. Beilke.

¶ 1. N. PATRICK CROOKS, J

The petitioner in this case, Linda Rohde-Giovanni (Rohde-Giovanni), formerly Linda Baumgart, seeks review of a published court of appeals' decision, affirming an order of the Dane County Circuit Court, which terminated maintenance. Paul Baumgart (Baumgart) and Rohde-Giovanni were divorced in 1992. In the divorce judgment, Baumgart was ordered to make both child support and maintenance payments to Rohde-Giovanni. In 2001, Baumgart brought a motion to terminate maintenance. The circuit court concluded that a substantial change in circumstances was present such that terminating maintenance was appropriate. Rohde-Giovanni appealed, and a divided court of appeals affirmed the circuit court order.

¶ 2. We conclude that there was sufficient evidence from which the circuit court could reasonably find a substantial change in the parties' circumstances, and from which the court could conclude that such circumstances justified the termination of maintenance after two more years. The test for whether there is a substantial change in circumstances is the same, regardless of whether or not the issue of maintenance was stipulated to or contested during the divorce proceedings. The objectives of support and fairness must both be considered on the issue of modification of a maintenance award as well, whether there was a stipulation or a contest in the original proceedings. Moreover, we conclude that educational expenses a party incurs on behalf of an adult child may, but do not have to be, considered when examining the party's budget. This is a decision left to the sound discretion of the circuit court. While we do not anticipate frequent consideration of such educational expenses, we recognize that unusual or extraordinary circumstances could justify such consideration.

I

¶ 3. Baumgart and Rohde-Giovanni were married on April 15, 1973. During their marriage, the parties had four children. Rohde-Giovanni worked inside the home and was primarily responsible for the care of the parties' children, while Baumgart was employed outside the home. After 17 years of marriage, Rohde-Giovanni commenced a divorce action in December 1990. In December 1992, Judge Susan Steingass of the Dane County Circuit Court granted a judgment of divorce.

¶ 4. During the divorce proceedings, the parties stipulated that Baumgart would pay $1980 per month in child support, plus 29 percent of the gross amount of his bonus. Although the parties were to have joint legal and physical custody, the children would continue to live with Rohde-Giovanni, and she would continue to be the children's primary caregiver. The issue of maintenance for Rohde-Giovanni, however, was contested.

¶ 5. At the time of the divorce proceedings, Rohde-Giovanni was taking classes at a local college and grossing approximately $734 per month, or $8808 per year, as a group counselor. She expected to receive her degree in two years. Rohde-Giovanni's goal was to teach special needs children, and she anticipated that she could earn between $22,000 and $28,000 per year. She expected that the maximum amount of income she could earn would be $40,000 per year, approximately 15 years after entering the work force. When considering the appropriate amount of maintenance to award, Judge Steingass also considered the fact that Rohde-Giovanni suffered from the following physical ailments: depression, poor health, chronic back pain, a prediabetic condition, arthritis in her hands, tendonitis in her feet, and basic fatigue. At the time of the divorce, Baumgart had an M.B.A., which he earned during the early part of the parties' marriage, and was earning $7750 in gross income per month, or $93,000 per year.

¶ 6. Judge Steingass concluded that the circumstances were appropriate for an award of indefinite term maintenance and awarded maintenance to Rohde-Giovanni in the amount of $950 per month. The maintenance award left both parties unable to meet their projected monthly budgets. However, Judge Steingass noted that, in the interest of fairness, the burden of operating with less money than originally budgeted should fall on both parties.

¶ 7. Judge Steingass further recognized that Rohde-Giovanni's years of exclusively dedicating herself to caring for her family had left her unable to generate the amount of income that Baumgart was capable of generating. The circuit judge noted that given the fact that Rohde-Giovanni was primarily responsible for the care of the parties' children, her low pay and limited availability to work would not allow her to enjoy a standard of living comparable to the standard she enjoyed while married. Nevertheless, the circuit judge ultimately concluded that this financial arrangement should only be applicable when child support obligations were being paid as agreed and Rohde-Giovanni was in school. Moreover, the circuit judge noted that her calculations would become outdated once Rohde-Giovanni earned in accordance with her full capacity after completing her education and when the child support amount changed.¹

¶ 8. In June 2001, Baumgart filed a motion in Dane County Circuit Court to terminate or reduce his maintenance payments to Rohde-Giovanni. Conversely, Rohde-Giovanni moved the court for an increase in maintenance. A family court commissioner dismissed the parties' motions, indicating that neither an increase nor a decrease in maintenance was appropriate. The commissioner noted that even though there were substantial changes in the parties' situations, such as the fact that Rohde-Giovanni's income had substantially increased, that she completed the degree she was pursuing at the time of the divorce and also obtained a Master's Degree, and that three of the parties' four children were now adults, the amount of maintenance should not be adjusted.

¶ 9. Baumgart then requested a de novo hearing. Judge Patrick J. Fiedler, Dane County Circuit Court, heard Baumgart's motion to terminate maintenance and Rohde-Giovanni's motion to increase maintenance in October 2001. In the proceedings before Judge Fiedler, the following new facts were brought to light: Rohde-Giovanni obtained her Master's Degree in special education in 1994. Rohde-Giovanni grossed $43,355 per year from her job working with emotionally disturbed children and approximately $13,968 per year from her part-time work as a counselor. Rohde-Giovanni also received approximately $3000 per year in interest and dividend income, bringing her total gross income to approximately $61,000 per year. Rohde-Giovanni had over $70,000 in a money market account at the time of the hearing before Judge Fiedler. Rohde-Giovanni continued to suffer from health problems, but her ailments had not significantly increased since the time of the divorce. Moreover, Rohde-Giovanni did not submit any evidence that, because of her health condition, she was unable to earn a living. The parties' one remaining minor child lived with Rohde-Giovanni. As a result of the decrease in the number of minor children living with Rohde-Giovanni, Baumgart's child support obligation was decreased to $1513 per month. Rohde-Giovanni allowed her 19-year-old son to live with her rent-free. Rohde-Giovanni also paid for his tuition, books, car, and other living expenses. An adult friend of Rohde-Giovanni's resided in her basement rent-free. The parties' adult daughter also lived with Rohde-Giovanni at times, although there was some discrepancy as to the exact duration and timing of her stay.² Baumgart grossed $104,665 per year from his job, and he also received $2200 per year for speaking engagements. Baumgart's current wife earned a base salary of approximately $69,000 gross per year. According to the information submitted to the circuit court, Baumgart's monthly expenses have increased approximately 20 percent since the divorce. Those monthly expenses included his mortgage payment of approximately $1577, condominium association fees of $135, life and health insurance payments of approximately $230, payments for his minor son's orthodontia work, medical and drug expenses not covered by insurance of $450, vehicle payments of approximately $732, debt or installment payments of approximately $1247, aviation hobby expenses of $250, clothing budget of $200, and an entertainment budget of $300.

¶ 10. After hearing testimony and receiving exhibits from both parties, Judge Fiedler concluded that there had been a substantial change in circumstances, such that the award of indefinite term maintenance in the divorce judgment should be converted to limited term maintenance that would end in December 2003, a full six months after Baumgart was to make the last child support payment to Rohde-Giovanni. The court noted that while Rohde-Giovanni was within her right to provide financial assistance to the parties' adult children, as she was free to spend her discretionary funds in a manner of her choosing, she could not expect Baumgart to be required to subsidize this decision. The court noted that although Baumgart was able to share his living expenses with his current wife, he could not use Baumgart's current wife's income as a basis to grant an increase in maintenance.

¶ 11. Judge Fiedler also stated that Judge Steingass contemplated that her order would likely need to be reconsidered once Rohde-Giovanni completed her education. Noting that...