In re the Marriage of King, No. 97-0994 (Wis. 3/03/1999)

Decision Date03 March 1999
Docket NumberNo. 97-0994.,97-0994.
PartiesIn re the Marriage of: Christopher King, Petitioner-Appellant, v. Sonia G. King, Respondent-Respondent Petitioner.
CourtWisconsin Supreme Court

For the respondent-respondent-petitioner there were briefs by Kristina L. Felber and Dowling & Felber, S.C., Milwaukee and oral argument by Kristin L. Felber.

For the petitioner-appellant there was a brief by J. Steven Tikalsky, Andrew J. Zbaracki and Tikalsky, Raasch & Tikalsky, Waukesha and oral argument by J. Steven Tikalsky.


¶ 1 Sonia King filed a petition for review of that portion of an unpublished court of appeals decision1 which reversed an order of the Waukesha County Circuit Court. In the order, the circuit court awarded maintenance to Sonia King in conjunction with her divorce from Christopher King. Because the circuit court incorrectly assumed that a spouse has a legal entitlement to maintenance and neglected to base its award on its findings with respect to the factors provided by Wis. Stat. § 767.26 (1997-98),2 we conclude that the circuit court erroneously exercised its discretion in making the maintenance award. Accordingly, we affirm the decision of the court of appeals.

¶ 2 Although we affirm the court of appeals, we do not agree with its decision to determine independently whether Sonia King is deserving of maintenance. The correct course of action is to remand the case to the circuit court for an exercise of its discretion. Accordingly, we remand the case so that the circuit court can determine maintenance under the proper legal standards. In light of our decision to remand the case, we decline to address the question of attorneys' fees. The circuit court is free to consider the issue of attorneys' fees upon remand.


¶ 3 Christopher King and Sonia King were married in 1988. Although the Kings did not have children together, Sonia King has four children from a previous marriage. The children ranged in age from three to nine years when the Kings were married. Throughout the marriage, the children lived with the Kings.

¶ 4 Neither Christopher King nor Sonia King brought property of any significant value to the marriage. During the marriage, Christopher King worked full time as a neurosurgeon and Sonia King did not work outside of the home. Dr. King was completing his medical residency when he married Sonia King and was earning $40,000 per year. By the final year of the marriage, his annual income had increased to $533,000.

¶ 5 Sonia King was unemployed from 1982 to November 1994. She was supporting her family on AFDC when she met Christopher King. She did not have her high school diploma and had no education or employment plans at the time of the marriage. Previously, Mrs. King had held various jobs, including a position at a collection agency where she earned $ 5.00 an hour plus commissions.

¶ 6 On September 12, 1995, Christopher King filed a petition for divorce in Waukesha County Circuit Court. A hearing was held on January 12, 1996, before a family court commissioner. The commissioner entered a temporary order in which he instructed Mrs. King to "make all reasonable efforts to obtain full time employment." Temporary Order, Jan. 12, 1996 at 2.

¶ 7 The three-day trial began on June 11, 1996. The circuit court, Judge Patrick C. Haughney presiding, issued its oral decision on October 22, 1996. First, the court divided the parties' marital estate and debt obligations.3 The court awarded the Kings' most valuable asset, a Winnebago Way residence and adjoining lot, to Sonia King.4

¶ 8 Next, the circuit court considered the issue of attorneys' fees. The court indicated that although it seemed that Sonia King should receive some attorneys' fees, "some of this trial was taken up by . . . her wrongdoing in regards to disposing of property." Hearing Tr., Oct. 22, 1996 at 18. Ultimately, the circuit court determined that each of the Kings should be responsible for his or her own attorneys' fees.

¶ 9 Finally, the circuit court considered whether Sonia King should be awarded maintenance. The court noted the dual objectives of maintenance set forth by this court in LaRocque v. LaRocque, 139 Wis. 2d 23, 32-33, 406 N.W.2d 736 (1987), and made findings regarding each factor listed by Wis. Stat. § 767.26 (reprinted in full below).5

¶ 10 More specifically, the court found that the Kings' marriage was a short-term marriage. Although the court found Christopher's physical and emotional health to be good, the court stated that Sonia King had "done her best to detract from that." Hearing Tr., Oct. 22, 1996 at 25. The court determined that Christopher King's income was $533,000 per year.

¶ 11 "[E]xtremely street[-]wise" and "very manipulative" were phrases the court used to describe Sonia King. Hearing Tr., Oct. 22, 1996 at 25. The court found that Mrs. King did not have her high school diploma or GED. "[I]nstead of working towards that goal, she chose to appear on the Oprah Winfrey show. That's her choice and she can live her life-style how she wants, but she can't argue out of both sides of her mouth and then expect Dr. King to support her in the life-style that she chooses to live," the court stated. Hearing Tr., Oct. 22, 1996 at 24. The court also said of Mrs. King, "She's chosen to do nothing about obtaining her GED all these years, and I think the lot in life that she finds herself in is one that she willingly chooses and Dr. King should not have to support." Hearing Tr., Oct. 22, 1996 at 25.

¶ 12 The court determined Sonia King's earning capacity to be $6.60 per hour, or $13,738.00 per year. In addition, the court noted that Mrs. King should be receiving $6,000 in child support per year. Based on Sonia King's earning capacity, the court found that Sonia King would not be able to maintain the lifestyle she had kept up during the marriage.6 Nevertheless, the court did not find Sonia King's inability to support her pre-divorce lifestyle to be controlling in light of its findings regarding the other factors of Wis. Stat. § 767.26.

¶ 13 Likewise, the court did not find the tax consequences to each party to be a major consideration. The court determined that the Kings had not made any agreements between them as to services rendered by one spouse to the other with the expectation of compensation or reciprocation.

¶ 14 The circuit court spent a fair amount of time discussing the ninth factor listed in Wis. Stat. § 767.26, which is the contribution of one party to the education or increased earning power of the other. See § 767.26(9). The court found that the Kings' levels of education and training had not changed since the date of their marriage. The court determined that "Mrs. King's role was primarily that of being allowed to raise her children. . . . I do not find [the] other contributions she made to be extremely significant." Hearing Tr., Oct. 22, 1996 at 28. The court rejected Sonia King's argument that she advanced Christopher King's career by playing "the appropriate social hostess," finding that Mrs. King in fact had not contributed in any significant way to Christopher King's career.7 Hearing Tr., Oct. 22, 1996 at 21.

¶ 15 After setting forth these findings regarding the statutory factors, the court awarded Sonia King maintenance for three years, in the amounts of $200,000 the first year, $ 150,000 the second year, and $100,000 the third year. The court explained its award as follows:

What the court finds here, reiterates again, is based upon the dividing up of this marriage, the disparity in income, that this very high amount of maintenance is appropriate. And despite everything else that I've put on the record, which includes the fact that Mrs. King's life-style is one in which she seems to choose to exercise irresponsibility rather than responsibility, does not change the fact that when two people choose to marry each other that their incomes become divided up and that she legally has the right to expect maintenance, to demand it, and is entitled to it.

Hearing Tr., Oct. 22, 1996 at 30. On November 12, 1996, the court filed its written findings of fact, conclusions of law, and judgment of divorce.8

¶ 16 On November 27, 1996, Christopher King filed a motion for reconsideration of the maintenance award and the division of debts. Dr. King argued that the maintenance award was excessive in light of the circuit court's findings that the marriage was a short-term marriage and that Sonia King had not contributed to Dr. King's earning capacity or education or to raising any children of Dr. King's. Sonia King moved to dismiss the motion and sought attorneys' fees.

¶ 17 In a hearing on February 25, 1997, the circuit court, again presided over by Judge Haughney, heard and denied the motion for reconsideration. The court pointed out the short term of the maintenance award and stated that when a marriage ends, "the spouse without any earning capacity has a right to expect that there will be some continuation of the type of life-style." Motion Hearing Tr., Feb. 25, 1997 at 13. The court found that because it was dealing with a high-income marriage, it was fair to give Sonia King "a high income level for a short period of time" so that she could "plot[] out her future." Motion Hearing Tr., Feb. 25, 1997 at 13. The court stated:

I think that the amount of maintenance that was awarded in this particular case was appropriate, took into account all the factors. What made this case especially difficult was what I found to be the irresponsibility of Mrs. King in some of her life-style choices. But nonetheless, that was a life-style choice that was made. This court has to figure out how to divide up the income.

Motion Hearing Tr., Feb. 25, 1997 at 14. The court also declined to disturb the debt division and denied Sonia King's ...

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