IN RE MARRIAGE OF CASHIN v. Cashin
| Decision Date | 29 April 2004 |
| Docket Number | No. 03-1010.,03-1010. |
| Citation | 2004 WI App 92,681 N.W.2d 255,273 Wis.2d 754 |
| Parties | IN RE the MARRIAGE OF: Kimberly A. CASHIN n/k/a Kimberly A. Converse, Petitioner-Respondent-Cross-Appellant, v. William G. CASHIN, Respondent-Appellant-Cross-Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of the respondent-appellant-cross-respondent, the cause was submitted on the briefs of Richard J. Auerbach, Auerbach & Porter, S.C., Madison. On behalf of the petitioner-respondent-cross-appellant, the cause was submitted on the brief of Jack C. Hoag, Janesville.
Before Deininger, P.J., Vergeront and Higginbotham, JJ.
¶ 1.
William Cashin appeals the trial court's order construing the judgment of divorce from Kimberly Cashin to require him to pay maintenance in an amount equal to 25% of his gross income rather than 25% of his salary, as well as the order denying his motion for reconsideration. He contends the judgment of divorce was unambiguous and therefore not subject to construction by the trial court. We conclude the divorce judgment was ambiguous, the trial court had the authority to clarify what it had intended, and its construction was reasonable. We also conclude the trial court had the authority to assess interest on the arrears that were due under the judgment as construed by the court. We do not address the amount of the interest imposed because William did not raise that issue in the trial court and the record necessary to our review is not developed. Accordingly, we affirm.
¶ 2. Kimberly cross-appeals, contending that the trial court erroneously exercised its discretion in denying her motion to extend maintenance. We disagree and conclude the court properly exercised its discretion. We therefore affirm on the cross-appeal.
¶ 3. William and Kimberly were divorced following a trial before the Honorable Judge Richard T. Werner. At the close of the trial, Judge Werner rendered an oral decision that was later reduced to written findings of fact, conclusions of law, and a judgment entered on December 18, 1996.
¶ 4. At the time of the divorce, the parties had been married nineteen-and-one-half years and had two minor children, then fifteen and fourteen. Based on the parties' stipulation of physical placement, the court found that William was a shared-time payer under WIS. ADMIN. CODE § HSS 80 and applied that formula in determining the amount of child support he was to pay Kimberly. The court also ordered that William pay Kimberly maintenance. The paragraphs of the judgment on child support and maintenance provided:
¶ 5. In December 2001, Kimberly moved to find William in contempt of court for the failure to make the child support and maintenance payments as ordered. Kimberly contended that paragraph 30(b) of the divorce judgment required William to pay 25% of his gross income and he had paid only 25% of his salary. William disputed this construction of the judgment, pointing to the language in the fifth sentence of paragraph 30(b), which refers to "25% of the gross income of the Respondent as measured by his salary."
¶ 6. The motion was heard by Judge Werner. He reviewed a transcript of the oral decision he had made in December 1996. He referred to the references he had made then to "gross income" and stated that he meant by that "all income." Judge Werner explained that he had specific reasons for ordering that William pay only 25% of his salary in December 1996 for child support, and those reasons were unique to that year. He had not included William's bonus for 1996 in the calculation for child support because at the time the amount was unknown; he had therefore ordered it to be divided evenly between the parties. He had not included the stock bonuses or stock incentives because those had been received earlier that year and had been divided as assets. However, Judge Werner stated, he did not intend that those other sources of income be excluded in future years in computing the 25% that William was to pay; rather, he intended that all sources be included.
¶ 7. Considering all income William earned for the years 1997 through 2001, the court found that he was $28,718.62 in arrears on his maintenance obligation. The court imposed 12% interest on the arrearage, which was to begin to accrue on December 31 of each year for the amount in arrears for that year. The court found the total arrears plus interest accrued through November 12, 2002, was $36,889.72.
¶ 8. William moved for reconsideration and the court denied the motion. Judge Werner emphasized that his oral decision was not ambiguous, that it plainly stated that gross income was to be used in computing child support and maintenance, and that was the decision of the court in spite of how the written judgment was prepared.
¶ 9. William contends on appeal that the trial court had no authority to construe the written divorce judgment because the judgment clearly provided he was to pay 25% of his gross income "as measured by his salary." Kimberly responds that the judgment when read as a whole is ambiguous on the issue of what "gross income" means, and the court therefore had the authority to clarify its intent. ¶ 10. Before examining the language of the judgment, we set out the relevant case law. While a written judgment that is clear on its face is not open to construction, the trial court does have the authority to construe an ambiguous judgment to effectuate the trial court's objective. See Washington v. Washington, 2000 WI 47, ¶¶ 17, 19, 234 Wis. 2d 689, 611 N.W.2d 261
. Such a clarification is not a modification or amendment of the judgment. Id., ¶ 19.
¶ 11. In the context of construing written judgments, courts have adopted certain principles from case law construing contracts and other written instruments. Schultz v. Schultz, 194 Wis. 2d 799, 805, 535 N.W.2d 116 (1995). Thus, ambiguity is defined as language that is subject to two or more reasonable interpretations, either on its face or as applied to the extrinsic facts to which it refers. Id. at 805-06. Also, we consider the circumstances present at the time of entry, and, as with contracts, we do not consider the meaning of particular provisions of the judgment in isolation but in the context of the whole judgment. Id. at 805.
¶ 12. However, we have also recognized that construing a judgment presents a situation distinct from construing a contract, because in the former situation the drafter of the disputed language has the opportunity to interpret his or her own unilateral decision. Id. Thus, although we recognized in Schultz that the question whether a judgment is ambiguous presents a question of law, which we review de novo, we also decided that a deferential standard of review was appropriate once we concluded that a judgment was ambiguous. Id. at 808. Because the judge who drafted the ambiguous language has a superior practical knowledge of its meaning, when the judge resolves an ambiguity based on his or her experience of the trial and uses a reasonable rationale, an appellate court is to affirm the clarification by the trial judge. Id. at 808-09.
¶ 13. We observe that there may be a factual distinction between this case and Schultz in that in Schultz we refer to the trial judge as the "drafter," id. at 805, while the record here shows that Judge Werner received a draft of the findings of fact, conclusions of law, and judgment from William. However, once Judge Werner signed the document and it was entered by the clerk of the circuit court, it became the judgment of the court. Neither party argues that our analysis should differ from that in Washington and Schultz solely because Judge Werner did not draft the judgment. We conclude it does not differ. This conclusion is consistent with Jackson v. Gray, 212 Wis. 2d 436, 441-42, 444, 569 N.W.2d 467 (Ct. App. 1997), in which we held that an unambiguous written judgment, prepared by one of the attorneys and then signed and entered by the court, clearly expressed the court's intent; we did not...
To continue reading
Request your trial
-
Murphy v. Holland
...a substantial change in circumstances for an erroneous exercise of discretion. Rohde-Giovanni , 269 Wis. 2d 598, ¶17 ; see also Cashin v. Cashin , 2004 WI App 92, ¶44, 273 Wis. 2d 754, 681 N.W.2d 255 (explaining that Rohde-Giovanni changed the standard of review). This same standard is appl......
-
Murphy v. Holland
...a substantial change in circumstances for an erroneous exercise of discretion. Rohde-Giovanni, 269 Wis.2d 598, ¶17; see also Cashin v. Cashin, 2004 WI.App. 92, ¶44, Wis.2d 754, 681 N.W.2d 255 (explaining that Rohde-Giovanni changed the standard of review). This same standard is applied when......
-
Lemke v. Lemke
...¶ 7 Standard of review plays a large part in how appellate courts review a trial court's decision to deny an extension of maintenance. In Cashin, we were faced with a conflict in the standard of review for an extension of maintenance and resolved it by concluding: We conclude we should foll......
-
Ladwig v. Ladwig
...that the trial court understands that it is called upon to make a ruling). We therefore decline to address it on appeal. See Cashin v. Cashin, 2004 WI App 92, ¶ 47, 273 Wis.2d 754, 681 N.W.2d 255. 15 The Mac Davis computer program makes necessary tax calculations, such as after-tax income a......