Lemke v. Lemke
| Citation | 2012 WI App 96,820 N.W.2d 470,343 Wis.2d 748 |
| Decision Date | 12 July 2012 |
| Docket Number | No. 2011AP1974.,2011AP1974. |
| Parties | In re the marriage of: Lisa M. LEMKE, Petitioner–Appellant, v. Ricky A. LEMKE, Respondent–Respondent. |
| Court | Court of Appeals of Wisconsin |
OPINION TEXT STARTS HERE
On behalf of the petitioner-appellant, the cause was submitted on the briefs of Janice N. Bensky and Jared M. Potter of Stafford Rosenbaum LLP, Madison.
On behalf of the respondent-respondent, the cause was submitted on the brief of Anthony C. Kraujalis of Anthony C. Kraujalis Law Offices, Janesville.
Before SHERMAN and BLANCHARD, JJ., and CHARLES P. DYKMAN, Reserve Judge.
[343 Wis.2d 752]¶ 1 Lisa Lemke appeals a 2011 amended divorce judgment which changed a 2007 award of family support to an award of child support with no maintenance. She asserts that the trial court's finding that she failed to show a substantial change of circumstances between her divorce trial and a hearing three years later was clearly erroneous. She also asserts that there was no evidence supporting the trial court's finding that she was shirking employment and education and had a significant earning capacity. She argues that the trial court erred by failing to compare her assumed earning capacity with her ex-husband's known salary. She claims that the money she received as a result of an automobile accident is insufficient to support her. Finally, she contends that the trial court erroneously exercised its discretion by relying on the court's own personal health problems to analyze the injuries she received in the automobile accident. We agree with Lisa on each point and therefore reverse.1 Because the only credible evidence is that Lisa has no earning capacity due to factors that include the automobile accident, we agree with Lisa that she is entitled to indefinite maintenance. We therefore remand with instructions to set the amount of maintenance payment, on an indefinite basis, in accordance with well-known standards.
¶ 2 Ricky and Lisa Lemke were married in 1983, when Lisa was eighteen years old and Ricky was twenty-seven years old. Except for a very short time when Lisa worked at a fast food restaurant, she did not work outside the home. She was a homemaker and cared for the parties' four children, born in 1986, 1991, 1992, and 1996. In 2005, shortly after this divorce action was filed, Lisa and her children were involved in a serious automobile accident. As a result, she and some of her children were injured, and she has seen doctors and therapists concerning her injuries throughout this divorce proceeding. Whether her current medical status, including the remaining effects of injuries she suffered in the automobile accident, prevents her employment is the central issue in this appeal.
¶ 3 The parties were divorced in February 2007. They stipulated all issues except the questions of child support and maintenance. Judge Roethe concluded that Lisa had been impaired in her ability to earn money as a result of her years of contributions to the marriage, which is a factor weighing in favor of maintenance.2 Judge Roethe also found that, as a result of the automobile accident, Lisa had complaints of chronic daily headaches, neck injuries, soft tissue injuries, a sprained wrist, and a right knee problem, and that these affected her ability to be gainfully employed. He believed that, at the time of the divorce, Lisa could have been doing more to finish her college education, and should take steps in this regard to increase her employability. He concluded that, with appropriate education and training, Lisa could become self-supporting at a standard of living reasonably comparable to that which she enjoyed during the marriage, if her injuries resolved.
¶ 4 As part of the original proceedings, Judge Roethe considered the report of Michele Albers, a vocational rehabilitation counselor retained by Ricky. Judge Roethe observed that the problem he had with Albers' evaluation was that an evaluator in her position cannot make findings without relying on the findings of doctors as to the physical capabilities of the person, and the 2007 record was devoid of any such medical findings. As we discuss further below, we agree with Judge Roethe's observation.
¶ 5 Judge Roethe examined Lisa's budget and concluded that she and her three minor children had needs of approximately $3500 to $3600 per month, but also observed that, given the joint resources of the parties, “neither party is going to live in the style that they were accustomed to during the marriage.” Judge Roethe found that Ricky earned $74,000 per year, and that he should pay family support of $39,000 per year, or $3250 per month. Because Lisa would receive tax credits for the children, that amount would give her a federal tax refund of $927 but a state tax liability of $1857. Judge Roethe limited this family support that Ricky would have to pay Lisa to three years, which is when the parties' second son would graduate from high school: “At that point, I think we ... better have a review of this entire matter....” Judge Roethe also noted:
[I]t's important for the Court to set forth what's going to happen in the next three years that may change my views on whether the maintenance should last longer than three years, and one of those is the state of Mrs. Lemke's health.... The second is the state of Mrs. Lemke's education.... The third thing is that ... Mrs. Lemke needs to ... get herself in[to] the employment market. And the fourth thing is—and this is really going to affect my judgment—what's going to happen to this automobile accident case; because if Mrs. Lemke sustained the injuries that she says she sustained and has been impaired to the extent that [she says] she has been impaired, that wasn't the problem of this marriage. That was the problem of the tort-feasor.
Judge Roethe awarded significant family support for three years due to the fact that Lisa needed support “because of her absence from the job market and all the things I've alluded to” (economic handicap as a result of her contributions to the marriage, and complaints of injuries: headaches, neck injuries, soft tissue injuries, sprained wrist, right knee problem). “At the present time these affect her ability to be gainfully employed.”
¶ 6 As Judge Roethe anticipated, just before the three-year period passed, Lisa moved to extend the family support order and to include amounts therein as indefinite maintenance. By this time, Judge Roethe had retired and Judge Forbeck was assigned to the case. Judge Forbeck heard the motion for two days in 2011, and concluded that Lisa's family support should terminate with no maintenance award, and that support for the one minor child remaining at home would be $1140 per month.3
¶ 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 follow the supreme court's decision in Rohde–Giovanni and review a trial court's decision to deny an extension of maintenance as a discretionary decision, including the decision whether there is a substantial change in circumstances. Under this standard of review, we affirm the trial court's decision on whether there is 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 (citing Rohde–Giovanni v. Baumgart, 2004 WI 27, ¶¶ 17–18, 269 Wis.2d 598, 676 N.W.2d 452).
¶ 8 Nonetheless, the supreme court has recognized certain baseline standards in evaluating requests to extend maintenance that could be seen as exceptions to this deferential standard, in the sense that lower courts would be reversed if in the course of exercising their discretion they make, or fail to make, these particular findings. One baseline standard is found in LaRocque v. LaRocque, 139 Wis.2d 23, 35, 406 N.W.2d 736 (1987), where the court noted that “[a] court must not reduce the recipient spouse to subsistence level while the payor spouse preserves the pre-divorce standard of living.” In the context of maintenance changes, the court stated: “The circuit court must not prematurely relieve a payor spouse of a support obligation lest a needy former spouse become the obligation of the taxpayers.” Id. at 41, 406 N.W.2d 736.
¶ 9 Turning to the relevance of efforts made by parties to earn income in this context, the presence or absence of such efforts are to be considered as factors, but only minor ones. In Vander Perren v. Vander Perren, 105 Wis.2d 219, 229–30, 313 N.W.2d 813 (1982) (citation omitted), the court explained:
We believe that a party's lack of initiative or effort to become self-supporting is a relevant factor for a court to consider in awarding or terminating maintenance. We do not, however, believe that such considerations may be raised to a determinative status.
Finally, the supreme court has modified the tests courts are to use when determining modification of maintenance issues to improve accuracy and fairness:
[W]e emphasize that we have moved away from [the unjust or inequitable test] and that the correct test regarding modification of maintenance should consider fairness to both of the parties under all of the circumstances, not whether it is unjust or inequitable to alter the original maintenance award. The unjust or inequitable standard is qualitatively different than the fairness standard, since it seems, in practice, to focus primarily on a single party. We conclude that the fairness standard is the better approach, since there the focus should be on what is fair to both parties, not just one party.
Rohde–Giovanni, 269 Wis.2d 598, ¶ 32, 676 N.W.2d 452 (citations and footnotes omitted).
¶ 10 We explained the “fairn...
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