Marriage of Rohde-Giovanni v. Baumgart

ROGGENSACK, J.

¶ 34. (dissenting). As I read the circuit court's discussion that led to its order terminating maintenance, as well as the majority opinion of this court, a question nagged at me: What change in circumstances makes it unjust or inequitable to Paul to continue maintenance? Because the majority *364opinion does not address this question, which is a legal issue and is dispositive of this appeal, I respectfully dissent.

Standard of Review.

¶ 35. Whether there has been a substantial change in circumstances is a mixed question of fact and law. Rosplock v. Rosplock, 217 Wis. 2d 22, 32-33, 577 N.W.2d 32, 37 (Ct. App. 1998). The circuit court's findings of historic fact will not be overturned unless they are clearly erroneous. Id. at 33, 577 N.W.2d at 37. We review de novo whether a substantial change in circumstances has occurred. Id. A substantial change in circumstances sufficient to change an award for indefinite maintenance set out in a divorce judgment should be a change that causes it to be " 'unjust or inequitable to strictly hold either party to the judgment.'" See id. (citation omitted).

Maintenance Termination.

¶ 36. Whether the facts presented show a change in circumstances warranting a termination of indefinite maintenance depends on the court's findings in support of the original order and whether circumstances have occurred since that time that would make it unfair or unjust to Paul to continue maintenance. See id. The majority opinion affirms the termination of maintenance without addressing this issue, which I conclude is required under Rosplock and LaRocque v. LaRocque, 139 Wis. 2d 23, 40, 406 N.W.2d 736, 743 (1987). In evaluating the termination of indefinite maintenance, we must begin with the circumstances as found at the time of divorce. Wis. Stat. § 767.32(1) (2001-02).

*365 1. Divorce Judgment.

¶ 37. The circuit court that conducted the trial on the issue of maintenance when the divorce was granted made the following findings that are relevant to our review of the subsequent order terminating an award for indefinite maintenance: (1) During the nineteen-year marriage, Linda was primarily responsible for the care of the four children. (2) Paul provided financial support for the family, as he pursued his career development. (3) Indefinite term maintenance was appropriate because "[t]he time that Ms. Baumgart spent between the birth of Mariah in 1979 and April 1990 taking care of home and children, permanently [affected] her ability to generate the sort of earning capacity that Mr. Baumgart was free to generate." Findings of Fact, ¶ 33 (emphasis added). (4) It was anticipated that Linda would return to school as her child-care responsibilities lessened and that she could earn $40,000 per year from full-time employment after completing her education. (5) "[H]er earnings alone are unlikely to leave her self supporting to the degree that would permit her to live in a manner reasonably comparable to that enjoyed during the marriage now or in the future." Id., ¶ 36 (emphasis added). (6) Paul earned $7,700 per month and Linda earned $734 per month. The court ordered Paul to pay $950 per month as maintenance and $1,890 per month as child support.

2. Motion to Terminate Indefinite Maintenance.

¶ 38. When the circuit court heard Paul's motion to terminate maintenance, Paul had gross earnings of $8,333 per month and Linda had gross earnings of $4,834, a significant difference despite Linda's efforts at increasing her earning capacity. In addition, Paul's child support obligation of $1,890 per month was terminat*366ing; he had married a woman who earned $6,333 per month and her income covered half of his household expenses. Linda continued to maintain a household for their children, even though all would soon be legally adults.

¶ 39. In affirming the termination of indefinite maintenance, the majority opinion focuses primarily on two facts: (1) Linda has increased her earnings since divorce1 and (2) Linda uses some of her income to help support their children who are older than eighteen years of age. The first factor, her increased earnings, cannot support the legal conclusion of a substantial change in circumstances sufficient to terminate maintenance. The divorce court, in its findings of fact, took into account her anticipated increase in earnings when it ordered indefinite term maintenance, rather than limited term maintenance. This is not a case where Linda achieved financial growth in an unexpected amount.

¶ 40. The second factor regards how Linda spends the money available to her and has nothing to do with whether the continuation of maintenance is unjust or inequitable to Paul. Maintenance, unlike child support, is a payment that carries no directive on how the recipient spouse is to use it. However, the majority opinion equates the financial assistance Linda gives to the parties' adult children with ordering Paul to pay child support for them. This view has no basis in law, and the majority's reliance on Resong v. Vier, 157 Wis. 2d 382, 459 N.W2d 591 (Ct. App. 1990), is misplaced.

¶ 41. Resong addressed child support payments where the recipient had erroneously been ordered to *367place part of each child support payment in savings for the child's education after the child reached the age of majority. Id. at 391, 459 N.W.2d at 594. It had nothing to do with the choices a payee may make in regard to maintenance payments received. Furthermore, while the majority's reasoning may be understandable for a recipient spouse who has no income, it can have no validity for Linda, who works both a full-time and a part-time job for the money that her household requires. Therefore, if she chooses to help their children rather than spending $500 per month on clothes as Paul says he does, that certainly is not unjust or inequitable to Paul.

¶ 42. Furthermore, it appears that the court gave little or no weight to Linda's contribution to raising the parties' children for nine years after the marriage ended, while Paul continued to pursue his career both in and out of the state. That Paul contributed to them in a financial manner and with parenting when he was within the state is undisputed, but the court gave him a good deal of credit for that. However, Linda's service contributions are every bit as valuable as Paul's financial contribution, though much harder to value in a dollars and cents perspective. See LaRocque, 139 Wis. 2d at 38, 406 N.W.2d at 742. There is unfairness to Linda in the lack of value placed on her continued commitment to the family, and the failure to recognize that but for her twenty-nine year commitment to caring for the parties' children, it may have been she who had an earning capacity of $106,000 per year, rather than Paul.

¶ 43. And finally, this is not a case where the modest amount of maintenance paid, when compared with Paul's earnings and expenses, is a financial hardship on him. Accordingly, because the majority opinion *368does not recognize that while there have been many changes in circumstances that have affected Paul and Linda since their divorce, they were anticipated by the circuit court at the time of divorce and none are of a type that cause the continued payment of maintenance to be unjust or inequitable to Paul, I conclude there has been no substantial change in circumstances sufficient to terminate maintenance. Therefore, I respectfully dissent.

The majority opinion ignores Paul's increase in income and marked decrease in expenses, as did the circuit court.