In RE MARRIAGE OF ENDERS v. Enders

SUNDBY, J.

(dissenting). On this appeal, we revisit In re Marriage of LaRocque, 139 Wis. 2d 23, 406 N.W.2d 736 (1987). Because I do not agree with the majority that the trial court’s determination of maintenance conforms to LaRocque, I respectfully dissent.

I read LaRocque to hold that, in a marriage of relatively long duration, the trial court must make an effort to assure, to the extent possible, that the *150standard of living of both parties after the divorce is comparable to the standard they enjoyed during the marriage. The trial court must apply the eqüitable distribution-partnership concept of marriage which recognizes the contribution of both spouses to the marriage. See In re Marriage of Wierman v. Wierman, 130 Wis. 2d 425, 440, 387 N.W.2d 744, 750 (1986). While the Wierman court applied this concept to the division of the marital estate, it is apparent from LaRoeque that the court intends that the same concept shall apply to the determination of maintenance. The LaRoeque court stated: "Over a long marriage the parties each contribute to the stream of income as marital partners and should share the rewards.” 139 Wis. 2d at 39, 406 N.W.2d at 742.

The following from LaRoeque emphasizes the partnership concept, particularly in a marriage of long duration:

Because the wife’s contribution in this marriage was as homemaker and the husband’s as wage-earner, the husband leaves the marriage with the "asset” of a stream of income which the wife’s contributions helped him to develop. The wife, however, does not leave the marriage with a stream of income; a career as homemaker — although of economic value to the family and society — all too frequently does not translate into money-making ability in the marketplace.

LaRocque, 139 Wis. 2d at 38, 406 N.W.2d at 742. Having made this observation, the court then stated that "when a couple has been married many years and achieves increased earnings, it is reasonable to consider an equal division of total income as a starting point in determining maintenance.” Id. at 39, 406 N.W.2d at *151742. I see no escape from the conclusion that La-Rocque requires application of the equitable distribution-partnership concept of marriage to the stream of income "asset” which the wage-earner spouse has developed, with the assistance of his or her partner, during the marriage.

How is the trial court to apply the equitable distribution-partnership concept to the determination of maintenance? LaRocque requires satisfaction of the support and fairness objectives of maintenance. The LaRocque court stated that the statutory factors, sec. 767.26, Stats., "reflect and 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, 139 Wis. 2d at 33, 406 N.W.2d at 740.

The LaRocque court related the support objective to the parties pre-divorce and post-divorce standard of living.

"While sec. 767.26(6)[, Stats.,] requires the circuit court to consider the parties’ pre-divorce standard of living in awarding maintenance, we disagree with the circuit court’s application of this statutory factor. Sec. 767.26(6) requires the circuit court to consider the feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage and the length of time necessary to achieve this goal if the goal is feasible. The legislature thus has expressly declared that the standard of living for maintenance is a standard of living comparable to the one enjoyed during the marriage. In other words, the *152goal of maintenance is to provide support at pre-divorce standards, and this goal may require that the recipient spouse be awarded maintenance above bare subsistence needs.

Id. at 35, 406 N.W.2d at 740-741 (emphasis added) (citation omitted).

How is the trial court to determine the parties’ pre-divorce standard of living? The LaRocque court quoted Bahr v. Bahr, 107 Wis. 2d 72, 84-85, 318 N.W.2d 391, 398 (1982) as follows:

It would seem reasonable for the trial court to begin the maintenance evaluation with the proposition that the dependent partner may be entitled to 50 percent of the total earnings of both parties. This percentage may, as in the case of property division, be adjusted following reasoned consideration of the statutorily enumerated maintenance factors.

LaRocque, 139 Wis. 2d at 39, 406 N.W.2d at 742.

In this case, the trial court considered only the husband’s net income after deducting $20,000 in business expenses and the 1986 income taxes as shown on the parties’ 1986 income tax returns. The trial court thus rejected "total earnings of the parties” as the starting point for determining maintenance.

If, as the LaRocque court has said, the goal of maintenance is to enable the dependent partner (note the use of the word partner) to enjoy a standard of living reasonably comparable to that enjoyed during the marriage, the only "reasoned starting point,” Bahr, 107 Wis. 2d at 85, 318 N.W.2d at 398, is the total earnings of both parties.

I do not consider the LaRocque/Bahr starting point of "total earnings of both parties” to be merely a suggestion to trial courts. I believe the court deliber*153ately chose total earnings for several reasons. First, it wished to emphasize the partnership concept in long marriages in which both partners have contributed to the stream of income. Second, the court was aware that starting with the total earnings of both partners would minimize the likelihood of skewing the income available for maintenance.

The danger of selecting another starting point is apparent from this case. The trial court, without examination, allowed Robert to deduct business expenses from his income. Business expenses, particularly in an occupation such as Robert’s, frequently afford the taxpayer a natural shelter for income because certain expenses such as housing, meals and transportation are tax deductible. Income may also be sheltered from taxation by artificial tax shelters. The business expenses which Robert deducted in this case may have replaced expenses which he would otherwise have incurred.

I believe the LaRocque court recognized that a fair result is more likely to be reached if the starting point is the total earnings of the parties. The La-Rocque and Bahr courts recognized, however, as do I, that

while this starting point is important, it is not the determinative factor which controls the ultimate award. For "[i]t is the equitableness of the result reached that must stand the test of fairness on review,” and such a result requires a reasoned starting point adjusted to reflect thoughtful consideration of other important factors. Bahr v. Bahr, 107 Wis. 2d 72, [ ] 85, 318 N.W.2d 391[, 398] (1982) [quoting Lacey v. Lacey, 45 Wis. 2d 378, 382, 173 N.W.2d 142, 144 (1970)].”

LaRocque, 139 Wis. 2d at 39, 406 N.W.2d at 742 (emphasis added).

*154In this case, the "thoughtful consideration of other important factors” would have included the extent to which the allowance to the husband of his business expenses made additional income available for maintenance.

I dissent principally because I believe that La-Rocque should be revisited and its holding clarified or reaffirmed. I also dissent, however, because I conclude that the trial court’s treatment of child support in relation to its award of maintenance does not "reflect thoughtful consideration.”

The trial court did not order either parent to pay child support. It stated, however, that, "The issue of child. support was considered by the Court and was factored into the provision of maintenance formula.”

The trial court determined that Robert’s net monthly income of approximately $5,000 was the appropriate LaRocque starting point. It then deducted $1,500 a month for the support of the two children in his custody.

My greatest concern with this approach is that Robert is getting a permanent credit of $1,500 a month for child support, although he will have a child support obligation only for a very limited time. At the time of the divorce, one child was within eighteen days of being eighteen years of age and the other was sixteen years of age. The judgment made no provision for adjustment or reexamination of the maintenance award as each child reaches majority. The majority assumes that the trial court is required to re-examine the maintenance issue once the children reach majority. This is not the case. The judgment does not require such reexamination. Nor does sec. 767.32, Stats.

The majority acknowledges that, in order to obtain a change in the maintenance award, Susan will have to move the court for a modification under sec. *155767.32, Stats. We should not compel her to initiate expensive and time-consuming litigation to correct what is a present trial court error. The majority responds that there is no present error and that the error, if any, will occur only when the children reach majority. I would agree with the majority if the judgment awarded maintenance only until the children reach majority. Because the judgment, however, makes an award of maintenance which extends beyond the children’s majority, the error is a present error and correctable on appeal.

Finally, the trial court did not explain how it arrived at the figure of $1,500 per month as child support. The majority states: "Given the nature of their lifestyle, Robert’s annual earnings, and balance of the statutory factors the court concluded that the actual cost of maintaining the two children in the manner consistent with the lifestyle prior to the divorce was $1,500." Majority opinión at 143.

In its written findings of fact and conclusions of law the trial court did not make any finding as to the parties’ lifestyle or the cost of maintaining the children in a manner consistent with the parties’ lifestyle. It gave no consideration to the child support percentage standard which the trial court must consider in determining child support under sec. 767.25(lj), Stats.

In its oral decision the trial court stated: "I observe that both parties have lived well beyond their means for many, many years and have not wisely handled their money_” In describing how it employed the LaRocque methodology, the trial court stated that it deducted from Robert’s income, his business expenses and income taxes, and, "I am subtracting from that figure what he is reasonably obliged to pay in the way of support of the two boys, which I have used at the rate of $1,500 a month ....”

*156I am left with a nagging question: Why is $1,500 per month what Robert is "reasonably obliged” to pay in the way of child support? See Bahr, 107 Wis. 2d at 82, 318 N.W.2d at 397 (failure of trial court to explain reason for $1,500 per month maintenance award left supreme court with a nagging question as to its appropriateness). The court’s finding falls short of reasoned decisionmaking required by Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16, 20 (1981), quoted in Bahr, 107 Wis. 2d at 77-78, 318 N.W.2d at 395.

Although it does not say so, the majority is obviously supplying reasons to support the $1,500 figure. This practice is decried by the supreme court. In Termination of Parental Rights to T.R.M., 100 Wis. 2d 681, 688, 303 N.W.2d 581, 584 (1981), the court stated, "we have previously expressed a preference for remanding the matter to the trial court when confronted with inadequate findings in family law or domestic relation cases.”

Further, there is nothing in the record to support the $1,500 figure. Robert filed a financial disclosure statement but it is impossible from that statement to determine the expenses attributable to the children.

I conclude that the maintenance award has produced a substantial disparity between the post-divorce incomes of the parties. Robert and the children are able to live according to a lifestyle at least equal to that enjoyed prior to the divorce while Susan is denied the same opportunity. I therefore dissent.