Vander Perren v. Vander Perren, 80-1189

• Decision Date: 05 January 1982
• Docket Number: No. 80-1189,80-1189
• Citation: 313 N.W.2d 813,105 Wis.2d 219
• Parties: Mary T. VANDER PERREN, Plaintiff-Appellant-Petitioner, v. Floyd M. VANDER PERREN, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 813

313 N.W.2d 813

105 Wis.2d 219

Mary T. VANDER PERREN, Plaintiff-Appellant-Petitioner, v. Floyd M. VANDER PERREN, Defendant-Respondent.

No. 80-1189.

Supreme Court of Wisconsin.

Argued Dec. 1, 1981.

Decided Jan. 5, 1982.

Avram D. Berk, Green Bay, argued, for plaintiff-appellant-petitioner; Berk, Berk & Hoida, S. C., Green Bay, on brief.

Stephen J. Holden, Green Bay, for defendant-respondent.

CALLOW, Justice.

This is a review of an unpublished March 24, 1981, decision of the court of appeals, 306 N.W.2d 308 affirming in part and vacating and remanding in part a June 6, 1980, order of Brown county circuit court Judge John C. Jaekels, denying plaintiff's motion to increase maintenance; continuing maintenance in a reduced amount; and providing for the termination of maintenance on March 31, 1981. The primary issue pursued by the parties is the propriety of the termination of maintenance.

Mary T. Vander Perren (Mary) and Floyd M. Vander Perren (Floyd) were divorced on November 15, 1972, by judgment of Brown county court Judge Richard J. Farrell. By stipulation of the parties, Mary was awarded custody of the couple's two minor children and was awarded possession of their home until the youngest child became eighteen. At that time the house would be sold and the parties would divide the proceeds of the sale. By stipulation and pursuant to that judgment, Floyd was ordered to pay maintenance in the amount of $175 per month for an unlimited period of time and child support for the couple's two minor sons in the amount of $200 per month until each child became self-supporting or attained the age of eighteen. The parties' stipulation regarding the division of their estate was incorporated in the judgment.

Prior to their divorce, Mary and Floyd had been married for about twenty-four and one-half years. During the two-year period between Mary's high school graduation and the marriage, she had limited employment experience. After the marriage, Mary remained at home caring for the children because Floyd did not want her to work outside the home. Floyd has worked as a coordinator for Milprint, Inc., for approximately twenty-six years.

Support payments were terminated by stipulation and order filed August 25, 1977, amending the divorce judgment when custody of the parties' remaining minor son was transferred to Floyd. On July 18, 1977, Mary filed a motion to have her maintenance increased, and on October 21, 1977, Floyd filed a motion to terminate maintenance. In response to those motions, on November 10, 1977, Judge N. Patrick Crooks amended the divorce decree as follows: Mary's maintenance was immediately increased to $300 per month with the proviso that it terminate entirely on February 1, 1980, unless Mary petitioned the court for a continuation of maintenance prior to that time.

On January 24, 1980, Mary filed a petition requesting the trial court to increase and extend maintenance, alleging that her limited physical and vocational skills left her without sufficient income to sustain and support herself without receiving maintenance from Floyd. Floyd brought a motion to dismiss Mary's motion, alleging that the court lacked subject matter jurisdiction over maintenance because Judge Crooks' November 10, 1977, order was for limited alimony, thereby depriving the court of jurisdiction to continue alimony after February, 1980. Apparently relying on his position that the court lacked subject matter jurisdiction, Floyd did not move to reduce or terminate maintenance. On January 29, 1980, Judge Jaekels granted Mary's motion to retain jurisdiction over maintenance beyond February 1, 1980. Subsequent evidentiary hearings as to the parties' income and assets were held.

By order filed June 6, 1980, Judge Jaekels denied Mary's petition to increase maintenance and reduced maintenance to $150 per month until March 31, 1981, at which time all alimony terminated, ¹ despite the fact that no motion to reduce or terminate maintenance was before him.

The principal issue on this review, as in the court of appeals, is whether the trial court abused its discretion in reducing and terminating Mary's maintenance. We conclude that in ordering the reduction and termination of Mary's maintenance, the trial court did abuse its discretion. While we affirm the trial court's determination that it had subject matter jurisdiction, we vacate the trial court's order reducing and terminating maintenance, and we remand the case to the trial court for further consideration in accordance with the standards established in sec. 767.26, Stats. ² At the time this appeal arose, Mary was fifty-one years of age. She was employed, through the favor of a friend, as a sales clerk, earning a minimum wage of $3.10 per hour resulting in a net income of $371 per month. Mary also had interest income of $198 per month from investments of her share of the proceeds from the sale of the family home. Testimony revealed that, although Mary was to receive a $242 tax refund from the state in 1979, she would be required to pay a federal income tax of $1,116 on her share of the proceeds from the sale of the parties' home.

Mary testified that physical disabilities of her arms and shoulders prohibited her from engaging in any type of employment which requires elevating her arms above her waist, including waitressing, typing, factory work, and housecleaning. Testimony in the record reveals that Mary does bowl and play golf and that, if she takes pain medication, her disabilities do not substantially interfere with these activities.

Expert testimony presented at trial revealed that Mary's chances of finding a higher paying job were "(l)ess than for the average applicant." That testimony revealed that due to Mary's age, coupled with her physical disabilities, less than 50 percent of the jobs in the labor market would be available to her and that it was unlikely she could successfully compete in the employment market for more than 10 percent of those jobs. Such jobs would typically pay minimum wages to 75 cents per hour above minimum wage.

Mary submitted a budget of $803 to the court with monthly expenses itemized to include: $265 for rent, $25 laundry and cleaning, $25 medical and drug expenses, $10 dental expenses, $60 entertainment, and $60 incidentals. Judge Jaekels summarily concluded that these figures were "high and inaccurate."

Floyd, age fifty-three, testified that he had gross earnings of between $16,000 and $19,500 for the years 1977-1979. Floyd submitted a budget to the court claiming monthly expenses in the amount of $1,025.30, $404.20 of which was for food because Floyd stated he cannot cook and must eat meals out. Floyd further estimated monthly expenses, in part, of $37.32 dental, $65 entertainment, $236.50 automobile, $10 laundry, $5 incidentals. Floyd lives in a home which is completely paid for, and he has no monthly rental expenses.

We agree with the trial court that Judge Crooks' order of November 10, 1977, provided for general as opposed to limited alimony. Judge Crooks' words-"(u) nless plaintiff petitions the Court ... for a continuation of alimony, the Court will adjudge that plaintiff has waived alimony effective February 1, 1980"-do not provide the certainty characteristic of limited maintenance. As we recently noted: "The certainty (of a limited alimony award) allows the parties to make plans without fears that the award will change." Johnson v. Johnson, 78 Wis.2d 137, 146, 254 N.W.2d 198 (1977). Judge Crooks' order specifically provided that, if Mary did not waive maintenance, "the Court's continuing jurisdiction of alimony will remain in effect." Clearly, these words do not "limit" or evince a certainty of termination of the maintenance award, and they cannot be construed to provide limited maintenance. We conclude, therefore, that the court had subject matter jurisdiction to issue the June 6, 1980, order.

Mary argues that the trial court abused its discretion in its June 6, 1980, order reducing and terminating her maintenance because the only matters before the court were plaintiff's motion for an increase in maintenance and defendant's motion to dismiss, alleging lack of subject matter jurisdiction. We conclude that sec. 767.32, Stats., ³ permits a court upon motion to increase maintenance, to reduce or to terminate maintenance as the circumstances of the parties may require. Procedurally, the court's actions in ordering the reduction and termination of maintenance when the only motion before it was to increase maintenance was not an abuse of discretion.

It is well-settled law in this state and elsewhere that the trial court maintains broad discretion in determining maintenance awards. Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16 (1981); Dean v. Dean, 87 Wis.2d 854, 877, 275 N.W.2d 902 (1979); Johnson v. Johnson, 78 Wis.2d at 143, 254 N.W.2d 198; Bussewitz v. Bussewitz, 75 Wis.2d 78, 89-90, 248 N.W.2d 417 (1977); Greco v. Greco, 73 Wis.2d 220, 229, 243 N.W.2d 465 (1976). We are mindful, however, "that the exercise of discretion is not the equivalent of unfettered decision-making." Hartung v. Hartung, supra, 102 Wis.2d at 66, 306 N.W.2d 16.

An abuse of discretion occurs when the trial court makes an error in computation. Dean v. Dean, supra, 87 Wis.2d at 877, 275 N.W.2d 902; Bussewitz v. Bussewitz, supra 75 Wis.2d at 83-84, 248 N.W.2d 417; Johnson v. Johnson, supra 78 Wis.2d at 143-44, 254 N.W.2d 198. In the instant action, Judge Jaekels erroneously calculated Mary's financial status by concluding that she received a tax refund of $1,100 for 1979. ⁴ Mary's 1979 tax return reveals she paid $1,216 in estimated and personal income. We agree with the court of appeals' conclusion: "In light of Mary's monthly income, the error in calculating Mary's tax refund appears to have been a substantial factor in the court's determination of the amount of alimony to be paid." Accordingly, the court of appeals properly vacated that...