Weberg v. Weberg, 89-2124

• Decision Date: 04 October 1990
• Docket Number: No. 89-2124,89-2124
• Citation: 158 Wis.2d 540,463 N.W.2d 382
• Parties: In re the Marriage of Karl James WEBERG, Petitioner-Appellant-Cross Respondent, v. Mary Ann WEBERG, Respondent-Cross Appellant. Case
• Court: Wisconsin Court of Appeals

Page 382

463 N.W.2d 382

158 Wis.2d 540

In re the Marriage of Karl James WEBERG Petitioner-Appellant-Cross Respondent, v. Mary Ann WEBERG, Respondent-Cross Appellant.

Case No. 89-2124.

Court of Appeals of Wisconsin.

Submitted on Briefs July 18, 1990.

Opinion Released Oct. 4, 1990.

Opinion Filed Oct. 4, 1990.

Linda S. Balisle and Linda D. Taplick of Stolper, Koritzinsky, Brewster & Neider, S.C., on the briefs, Beloit, for petitioner-appellant-cross respondent.

Kenneth W. Forbeck of Forbeck & Monahan, S.C., on the briefs, Beloit, for respondent-cross appellant.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

EICH, Chief Judge.

Karl Weberg appeals from a judgment of divorce. He raises two issues: (1) whether his disability benefits are available for payment of maintenance to his former wife, Mary Ann Weberg; and (2) whether the trial court abused its discretion in failing to limit the maintenance to a specific term of years. Mary Ann Weberg cross-appeals, challenging the court's ruling that a worker's compensation settlement received by Karl should be excluded from the marital estate. We affirm the judgment in all respects.

The Webergs were married for twenty-one years. At the time of the divorce, Karl Weberg was forty-four years old and Mary Ann Weberg was forty years old. They have two children, both of whom are adults. Prior to the marriage, Karl Weberg was severely wounded in Vietnam. He was discharged from the army with a physical disability rating of seventy percent. In spite of this disability, he worked for the Chrysler Corporation for ten years during the marriage. After he ended his employment at Chrysler in 1979, his physical status was re-evaluated by the Veterans' Administration as 100 percent permanently disabled. His current income is derived solely from disability payments. He receives Veterans' Administration benefits of $1,469 per month, social security disability benefits of $854 per month, and a disability benefit from Chrysler of $221 per month.

Mary Ann Weberg enjoys good physical and emotional health. She has been employed outside the home since 1980 and presently works forty hours per week at a clinic, earning $5.86 per hour ($234 per week).

The trial court awarded Mary Ann Weberg maintenance of $746 per month for an indefinite period. The maintenance payment, when combined with her employment income, gives her approximately forty-five percent of the parties' total combined income. The marital assets were divided fifty-fifty, each party receiving assets valued at $14,649. Karl Weberg retained as separate property the sum of $10,737, representing the remainder of a lump-sum worker's compensation settlement he had received for injuries incurred during his employment at Chrysler.

Karl Weberg argues first that his federal military disability payments and social security disability payments should not be considered by the court in awarding maintenance. He points out that his military disability payments may be assigned only if specifically permitted by statute, relying on several federal cases and 38 U.S.C. sec. 3101, which provides that veterans' benefits are only assignable to the extent authorized by law. ¹ He makes the same point with respect to his social security disability benefits, referring us to 42 U.S.C. sec. 1383(d) and 42 U.S.C. sec. 407 which he claims prohibit the benefits from being attached by creditors, including former spouses. ² We are not persuaded. We believe that Leighton v. Leighton, 81 Wis.2d 620, 261 N.W.2d 457 (1978), controls the issue and requires rejection of Weberg's argument.

Leighton held that a veteran's disability pension is income to be considered in allowing maintenance rather than property to be divided at divorce. Id. at 637, 261 N.W.2d at 465; see also Richardson v. Richardson, 139 Wis.2d 778, 783-84 n. 2, 407 N.W.2d 231, 234 (1987). The Leighton court stated that a military disability pension "is a federally-provided replacement for earning capacity lost.... It is analogous to a disability benefit paid under the Social Security Act to a disabled or handicapped worker.... [The payments are] income to the defendant, material only to his ability to pay alimony, if alimony were awarded." Id. at 636-37, 261 N.W.2d at 465.

We also reject Weberg's assertion that Leighton is no longer persuasive because of McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), and its progeny, notably Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), on which he placed principal reliance. The issue in Mansell, however, was whether "military retirement pay waived by the retiree in order to receive veterans' disability benefits" could be treated as property to be divided between divorcing parties under the language of the Uniformed Services Former Spouses Protection Act, 10 U.S.C. sec. 1408. The Court concluded that the waived retirement pay could not be treated as divisible property upon divorce.

In this case we are not asked to divide Weberg's benefits or award any portion thereof to his wife. We are to decide only whether the payments Weberg is presently receiving may be considered by the court as a factor in assessing his ability to pay spousal maintenance. We thus consider Mansell to be distinguishable on the facts and reject Weberg's claim that it mandates reversal.

Weberg next argues that the trial court abused its discretion by awarding maintenance to Mary Ann Weberg without considering her needs, his ability to pay, and the effects of the property division. He also maintains that the award disregarded the fairness objectives of LaRocque v. LaRocque, 139 Wis.2d 23, 33, 406 N.W.2d 736, 740 (1987), because it did not take into account the source of his income (disability payments) and was not limited in time.

Whether to award maintenance--and the duration and amount thereof if an award is to be made--are matters committed to the sound discretion of the trial court. Bahr v. Bahr, 107 Wis.2d 72, 77, 318 N.W.2d 391, 395 (1982). Generally, we look for reasons to sustain the trial court's discretionary decision, Loomans v. Milwaukee Mut. Ins. Co., 38 Wis.2d 656, 662, 158 N.W.2d 318, 320 (1968), and we need not agree with the decision to sustain it. Independent Milk Producers Co-op v. Stoffel, 102 Wis.2d 1, 12, 298 N.W.2d 102, 107 (Ct.App.1980). Because the exercise of discretion "is not the equivalent of unfettered decision-making," in order to sustain a discretionary determination we must be able to see that the court made a "reasoned application of ... the appropriate legal standard[s] to the relevant facts in the case." Hedtcke v. Sentry Ins. Co., 109 Wis.2d 461, 471, 326 N.W.2d 727, 732 (1982), quoting Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20 (1981). Thus, "if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the court's decision," we will affirm. Prahl v. Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct.App.1987).

When fixing maintenance, the starting point is sec. 767.26, Stats., which sets forth several specific factors to be considered by the court and concludes with a "catchall" provision allowing the court to consider any other factors it may deem relevant. Parrett v. Parrett, 146 Wis.2d 830, 837, 432 N.W.2d 664, 667 (1988). The enumerated factors are designed to further the general objectives of maintenance, which are "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, 139 Wis.2d at 33, 406 N.W.2d at 740.

The record satisfies us that the trial court properly exercised its discretion. The court gave careful and extensive consideration to each of the statutory factors in light of the facts of the case and reached a reasoned and reasonable result. Although the court did not make a specific finding of Mary Ann Weberg's needs, it considered those needs as reflected in her budget in arriving at its decision. And despite Weberg's contrary assertion, the trial court repeatedly referred to the property agreement in its findings.

We also believe that the fairness objective of LaRocque was met by the court's award. The court did not mechanically apply a fifty-fifty formula to determine maintenance. It considered whether each party was likely to attain a pre-divorce standard of living in the future, taking into account the nature and the sources of their incomes, their future earning potential, and the taxes each must pay. The court then awarded Mary Ann Weberg forty-five percent of their total combined income, stating that the less-than-equal award would give her "an incentive to apply herself ... [and] utilitze the talents that ... she has." The court also stated that, because of Karl Weberg's disability, "it is fair and equitable to give him a larger share of the total income of the parties." The court's discretionary determination was thus the "product of a rational mental process by which the facts of record and law relied upon [were] stated and ... considered together for the purpose of achieving a reasoned and reasonable determination." LaRocque, 139 Wis.2d at 27, 406 N.W.2d at 737. There was no abuse of discretion.

As we have noted, the trial court denied Mary Ann Weberg's request that a bank account containing the remainder of a worker's compensation settlement for job-related injuries suffered by Karl several years prior to the divorce be treated as marital property and divided equally between them. We reject her challenge to that ruling.

Decisions relating to the division of marital property are reviewed for abuse of the trial court's discretion under the standards we have discussed earlier in this opinion. Asbeck v. Asbeck, 116 Wis.2d 289, 293, 342 N.W.2d 750, 752 (Ct.App.1983).

Section 767.255, Stats., provides that...