Diane M. Farris v. David C. Walhovd

No. 99-2442

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

In re the Marriage of:

Diane M. Farris,

Petitioner-Respondent,

David C. Walhovd,

Respondent-Appellant.

APPEAL from a judgment of the circuit court for Dane County: SARAH B. O’BRIEN, Judge. Affirmed.

Before Dykman, P.J., Vergeront and Roggensack, JJ.

¶1 PER CURIAM. David Walhovd appeals from a judgment of divorce which requires him to pay his ex-wife, Diane Farris, $367 per month in maintenance for a period of five years. He contends that the maintenance award was based upon gender bias rather than the facts of record. For the reasons discussed below, we disagree and affirm.

BACKGROUND

¶2 Walhovd and Farris were married for twenty-three and one-half years. Each had a high school diploma at the time of the marriage. During the marriage, Walhovd worked continuously as an electrician, and obtained a Master Electrician’s license. Farris worked as a secretary for the first three and one-half years of the marriage. She then became a full-time homemaker for most of the three years surrounding the birth of the couple’s two children. For the next seven years, she worked as a staff assistant at the State Professional Education and Information Counsel part-time, using her job flexibility to assume primary responsibility for the household and the children. Once the children were older, she returned to work full-time and enrolled in college part-time.

¶3 At the date of the divorce, Farris was earning $39,154 per year, while Walhovd was earning $50,974 per year, including side jobs, but excluding overtime pay and money set aside in his vacation account. Farris had accumulated about three quarters of the credits needed to obtain a bachelor’s degree in political science. She estimated that it would take an additional four or five years and $7,000 to finish her degree, taking one or two classes per semester while working full-time. She testified that she believed becoming a full-time homemaker and then taking care of the children while working part-time had restricted her career opportunities because she was unable to go to school during that period or to advance upwards in her employment. Both parties were in their forties, in relatively good health and had comparable budgets with projected shortfalls in income. The trial court awarded Farris $367 per month in maintenance for a period of five years.

STANDARD OF REVIEW

¶4 Maintenance lies within the sound discretion of the circuit court. See Sellers v. Sellers, 201 Wis. 2d 578, 585, 549 N.W.2d 481 (Ct. App. 1996). Therefore, we will affirm a maintenance award which represents a rational decision based on the application of the correct legal standards to the facts of record. See id.

DISCUSSION

¶5 Wisconsin Stat. § 767.26 (1997-98)[1], lists a number of factors for a trial court to consider when determining the amount and duration of a maintenance award, including the length of the marriage, the age and health of the parties, the property division, the parties’ respective educational levels and earning capacities, the contributions of one party to the education or earning power of the other, tax consequences, and the standard of living enjoyed during the marriage. These 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, 32-33, 406 N.W.2d 736 (1987).

¶6 Thus, maintenance payments are not based solely on need or limited to situations where one spouse is not self-supporting. See Lundberg v. Lundberg, 107 Wis. 2d 1, 12-13, 318 N.W.2d 918 (1982). Maintenance may also be used for compensation purposes, when one spouse has been socially or economically handicapped by his or her contribution to the marriage. See id. at 14-15. A disparity in incomes may be fair, however, if the parties’ income levels “were unaffected by the marriage and obtained only through their own natural abilities and hard work.” Gerth v. Gerth, 159 Wis. 2d 678, 683, 465 N.W.2d 507 (Ct. App. 1990). The starting point for a maintenance evaluation following a long-term marriage is to award the recipient spouse half of the total combined earnings of both parties. See Bahr v. Bahr, 107 Wis. 2d 72, 85, 318 N.W.2d 391 (1982).

¶7 The trial court found that Farris had delayed her education due to family responsibilities and that it was likely that a bachelor’s degree would increase her earning capacity. It further found that Walhovd had not suffered an economic loss by financing Farris’s education, since both parties had been working full-time while she attended college. Walhovd contends the record was insufficient to support these findings because Farris never said she intended to get a college degree at the time of the marriage, and did not specify what job opportunities she had lost during the marriage or estimate how much she could expect her earning capacity to increase once she obtained her degree. He then asserts that the trial court merely “assumed,” due to gender bias, that Farris had sacrificed her earning capacity, noting that Farris had worked for the same organization for seventeen years and built up substantial retirement and other benefits during the marriage. We disagree with Walhovd’s characterization of the record and find nothing in the record to suggest gender bias on the part of the trial court.

¶8 First, contrary to Walhovd’s repeated assertions that there is no evidence in the record to show that Farris provided domestic services for more than the two and one-half years when she stayed at home, Farris testified that the reason she worked part-time for seven years was to take care of the household and the children, since Walhovd’s job did not give him the flexibility to do so. Walhovd did not dispute Farris’s testimony that she had been the primary homemaker and caregiver for the children for at least ten years, and he offered no testimony that he had performed any domestic tasks whatsoever during the course of the marriage. Therefore, it was not only fair for the trial court to infer that Farris had contributed most of the homemaking and childcare services to the marriage, it was the most reasonable inference from the testimony given by the parties. In addition, Farris testified that her career advancement was restricted because she was not able to go to school while she was busy working part-time and taking care of the children. It was certainly reasonable to infer from this testimony, and from the fact that she began school at the same time the children were old enough to allow her to return to work full-time, that she would have gone to school earlier if not for her childcare responsibilities. The trial court’s findings were grounded in the evidence presented, not stereotypes about traditional gender roles.

¶9 With respect to earning capacity, Farris testified that there were opportunities for advancement with her employer, but that an advanced degree was required for a position which had recently been filled there. The trial court did not need to put an exact dollar figure on how much more Farris would be able to earn as a college graduate in order to make a common sense deduction that a bachelor’s degree would give Farris increased opportunities for promotion. Moreover, Walhovd completely ignores the fact that the years Farris spent taking care of the children rather than working full-time allowed him to maintain his own uninterrupted skill development, thereby contributing to the growth of his earning capacity as a Master Electrician. See LaRocque, 139 Wis. 2d at 38. We therefore conclude that the trial court’s use of the fifty-fifty division of the parties’ combined income as an appropriate starting point for maintenance was a reasonable application of the law to the facts of record.

¶10 Finally, Walhovd claims that the current disparity in the parties’ incomes is largely attributable to the fact that he works overtime, takes side jobs and uses little vacation time, while Farris averaged nearly five weeks per year in vacation, personal days, sick days and emergency leave over the past two years. However, the trial court’s deviation in Walhovd’s favor from a fifty-fifty division of the parties’ combined income effectively adjusts for that portion of Walhovd’s income which goes beyond that which he could reasonably be expected to earn in a forty-hour work week. Moreover, both the amount and term of the maintenance award are modest for a marriage of more than twenty years. In sum, we are satisfied the trial court properly exercised its discretion.

By the Court.—Judgment affirmed.

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

[1] All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.