Marriage of Rohde-Giovanni v. Baumgart

• Decision Date: 26 June 2003
• Docket Number: No. 01-3014.,01-3014.
• Citation: 2003 WI App. 136,667 N.W.2d 718,266 Wis.2d 339
• Parties: IN RE the MARRIAGE OF: Linda ROHDE-GIOVANNI p/k/a Linda Susan Baumgart, Petitioner-Appellant, v. Paul Albert BAUMGART, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

266 Wis.2d 339

2003 WI App. 136

667 N.W.2d 718

IN RE the MARRIAGE OF: Linda ROHDE-GIOVANNI p/k/a Linda Susan Baumgart, Petitioner-Appellant,¹ v. Paul Albert BAUMGART, Respondent-Respondent.

No. 01-3014.

Court of Appeals of Wisconsin.

Submitted on briefs August 9, 2002.

Decided June 26, 2003.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Linda Roberson and Megan A. Senatori of Balisle & Roberson, S.C., Madison.

On behalf of the respondent-respondent, the cause was submitted on the brief of Stephen C. Beilke and Suzanne Lee of Murphy & Desmond, S.C., Madison.

Before Roggensack, Deininger and Lundsten, JJ.

¶ 1. LUNDSTEN, J.

Linda Rohde-Giovanni appeals an order of the circuit court converting her maintenance award from an indefinite term award to a limited term award expiring December 2003. Linda argues that the circuit court's decision to terminate her maintenance as of December 2003 was error because the court: (1) erroneously found that Linda could live at the marital standard of living without maintenance based in part on the court's failure to consider the expense Linda was incurring for an adult child's higher education when calculating Linda's current standard of living; (2) failed to properly apply the "fairness" objective of maintenance; and (3) erroneously converted Linda's maintenance to limited term maintenance without adequately evaluating the applicable legal test. We disagree with these arguments and affirm.

Background

¶ 2. Linda Rohde-Giovanni and Paul Baumgart were divorced on August 27, 1992, after nineteen years of marriage. As part of the judgment of divorce, the parties agreed to joint custody and shared physical placement of their three minor children. The original divorce order required Paul to make child support payments with a schedule for support reduction as each child reached age eighteen. Linda and Paul's youngest child turns eighteen in June 2003. In addition, Paul was required to make maintenance payments to Linda in the amount of $950 per month for an indefinite period of time.

¶ 3. On May 31, 2001, Paul moved to terminate or reduce the maintenance award to Linda. In response, Linda moved to increase the maintenance award. The court held a hearing on the parties' motions and the parties presented evidence of their financial circumstances at the time of the divorce, currently, and in the interim. At the time of the divorce, Linda was a student pursuing her master's degree in education and working part-time as a group counselor. Since the divorce, Linda has received her master's degree, is working as a teacher, and continues to work part-time as a group counselor.

¶ 4. At the time of the hearing, the parties had one minor child, age sixteen. Linda has an approximate current yearly income of $61,000. Paul remarried and currently earns approximately $105,000 per year. After finding that there had been a substantial change in the parties' financial circumstances, the circuit court converted the maintenance award from an indefinite award to a limited term award, ordering Paul to continue paying $950 a month in maintenance to Linda until December 2003.

Discussion

[1-4]

¶ 5. Linda contends that the circuit court's order, that maintenance payments will end December 2003, is improper because the parties' circumstances have not sufficiently changed to justify termination of her maintenance award. Whether there has been a substantial change of circumstances sufficient to warrant a modification of maintenance presents a mixed question of fact and law. Benn v. Benn, 230 Wis. 2d 301, 307, 602 N.W.2d 65 (Ct. App. 1999). "A circuit court's findings of fact regarding what changes have occurred in the circumstances of two parties will not be disturbed unless they are clearly erroneous. However, the question of whether those changes are substantial is a question of law which we review de novo." Id. (citations omitted). Where there has been a substantial change in circumstances, the subsequent decision whether to modify or terminate a maintenance award is within the discretion of the circuit court. See Murray v. Murray, 231 Wis. 2d 71, 77-78, 604 N.W.2d 912 (Ct. App. 1999)

; Plonka v. Plonka, 177 Wis. 2d 196, 200, 501 N.W.2d 871 (Ct. App. 1993).

We will uphold a trial court's exercise of discretion when the record shows that the court employed a process of reasoning in which the facts and applicable law are considered in arriving at a conclusion based on logic and founded on proper legal standards. We will generally look for reasons to sustain a trial court's discretionary decision.

Murray, 231 Wis. 2d at 78 (citations omitted).

[5]

¶ 6. We must first consider whether a substantial change in circumstances occurred. "A court may modify maintenance only `upon a positive showing of a change of circumstances,' which must be `substantial' and `relate to a change in the financial circumstances of the parties.'" Wettstaedt v. Wettstaedt, 2001 WI App 94, ¶ 6, 242 Wis. 2d 709, 625 N.W.2d 900 (quoting Johnson v. Johnson, 217 Wis. 2d 124, 127, 576 N.W.2d 585 (Ct. App. 1998) (Johnson I)).

¶ 7. Linda cites to cases suggesting that a substantial change in circumstances cannot exist independent of a finding that the change also warrants modification of the maintenance award. See Johnson v. Johnson, 225 Wis. 2d 513, 515 n.2, 593 N.W.2d 827 (Ct. App. 1999) (Johnson II)

("In a postdivorce modification petition, the threshold issue is `whether the parties met their burden of establishing a substantial change in circumstances after the divorce warranting a modification of maintenance.'" (quoting Johnson I, 217 Wis. 2d at 128)). To the extent Linda disputes Paul's statement that "the threshold test for determining whether modification of maintenance is warranted is simply whether the parties met their burden of establishing a substantial change in circumstances after the divorce," we agree with Linda; this is not an accurate statement of law. However, courts do treat the question (Is there a substantial change in circumstances?) as a threshold issue and then go on to consider whether such a change warrants modification of the maintenance award. See Murray, 231 Wis. 2d at 77-78; Johnson I, 217 Wis. 2d at 127; Gerrits v. Gerrits, 167 Wis. 2d 429, 437-39, 482 N.W.2d 134 (Ct. App. 1992). In any event, elsewhere in her briefing Linda admits that a substantial change in circumstances has occurred.²

[6-8]

¶ 8. The parties disagree as to whether the substantial change that has occurred warrants the modification ordered by the circuit court. "When modifying maintenance awards, the circuit court must consider the same factors governing the original determination of maintenance set forth in sec. 767.26, Stats." Poindexter v. Poindexter, 142 Wis. 2d 517, 531, 419 N.W.2d 223 (1988).³ The circuit court does not have to consider all of these statutory factors, but must "consider those factors which are relevant to the case." See id. at 532. These statutory factors "are designed to further two distinct but related objectives in the award of maintenance: to support the recipient spouse in accordance with the needs and earning capacities of the parties (the support objective) and to ensure a fair and equitable financial arrangement between the parties in each individual case (the fairness objective)." LaRocque v. LaRocque, 139 Wis. 2d 23, 33, 406 N.W.2d 736 (1987).

[9]

¶ 9. Paul argues that LaRocque's "fairness objective" does not apply to postdivorce modifications of maintenance awards. Paul finds support in Johnson I, 217 Wis. 2d 124, which states that the fairness objective "does not apply to a postdivorce situation." Id. at 128. However, in Johnson I we did not address whether the fairness objective applied to the circuit court's modification of a maintenance award. Rather, we spoke in the context of setting forth the threshold inquiry in a decision whether to modify a maintenance award, that is, whether there has been a substantial change in circumstances after the divorce warranting maintenance modification. See Johnson II, 225 Wis. 2d at 515 n.2

.

¶ 10. Moreover, the "fairness objective" is a broad "umbrella." Hubert v. Hubert, 159 Wis. 2d 803, 821, 465 N.W.2d 252 (Ct. App. 1990). The phrase, as applied to maintenance, has its genesis in LaRocque, where the term is simply used to explain that the statutory factors in WIS. STAT. § 767.26 are "designed to further" the two related objectives of maintenance: the support objective and the fairness objective (ensuring "a fair and equitable financial arrangement between the parties in each individual case"). LaRocque, 139 Wis. 2d at 32-33. Once a court has determined that a maintenance award must be reassessed because of a substantial change in circumstances, it is nonsensical to assert that the fairness objective does not apply.⁴

A. Whether the Circuit Court Correctly Determined That Linda Could Attain Her Marital Standard of Living Without Maintenance Payments

1. Whether the Circuit Court Determined that Linda Could Attain her Marital Standard of Living

¶ 11. As a threshold matter, Linda argues that the circuit court did not make a finding that she could attain the marital standard of living. However, a fair reading of the court's comments reveals that it did make this finding. The circuit court stated: "I think if you tighten up your budget[,]... you would be living reasonably comparable to that enjoyed during the marriage." The only reasonable reading of these words is that the court believed Linda would be living at the marital standard of living when her maintenance award terminated.

2. The Consideration of Linda's Payments for Her Adult Child's Higher Education Expenses

¶ 12. Linda next argues that the circuit court erred by not including her contributions to her adult child's higher education expenses in its assessment of her current standard of living. Linda contends that "it was an expectation of the marriage...