COURT OF APPEALS DECISION DATED AND RELEASED October 30, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1919
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
In re the Marriage of:
CHARLES M. OLSON,
Petitioner-Respondent,
v.
DIANE C. OLSON,
n/k/a DIANE C.
WENDORF,
Respondent-Appellant.
APPEAL from a judgment
of the circuit court for Walworth County:
JAMES L. CARLSON, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. Diane C. Wendorf appeals from a judgment modifying a
1992 judgment of divorce from Charles M. Olson. She argues that judicial substitution was improper after an
appellate remand from this court and that the revised maintenance award is the
result of an erroneous exercise of discretion.
We conclude that judicial substitution was proper and the record supports
the revisions made to the divorce judgment.
We affirm the judgment appealed from.
This is the third time
this case is before this court on appeal.
We have twice reversed the award of maintenance to Diane and remanded
the matter to the trial court for further proceedings. The facts and circumstances of the earlier
two appeals are set forth in Olson v. Olson, 186 Wis.2d 287,
290-92, 520 N.W.2d 284, 285-86 (Ct. App. 1994) (Olson II). Significant here is that in Olson II
our remand to the trial court was with instructions "to consider the
fairness and support objectives as they relate to both parties. The trial court should also consider the tax
consequences of potential awards, including deductions and social security
taxes. Finally, the trial court may
revisit its child support award if necessary." Id. at 297, 520 N.W.2d at 288.
Upon remittitur of the
record to the trial court, Charles filed a request for judicial
substitution under § 801.58(7), Stats.[1] Circuit Court Judge Robert J. Kennedy
approved the request. Circuit Court
Judge James L. Carlson was assigned to the case.
Diane argues that under
the Bacon-Bahr line of cases,[2]
judicial substitution was improper. At
the outset, we reject Charles' argument that this issue is not properly before
this court because Judge Kennedy's approval of the request is not brought
before this court on a judgment entered by Judge Carlson. Under Rule
809.10(4), Stats., on appeal from
a final judgment, all prior nonfinal orders or rulings adverse to the appellant
"made in the action or proceeding not previously appealed and ruled
upon" are brought before this court.
The rule is not limited to nonfinal orders entered by the same judge who
entered the final judgment. Although
the denial of a judicial substitution is reviewable by the chief judge of the
judicial administrative district, § 801.58(2), Stats., and judicial substitution matters are subject to our
supervisory jurisdiction, see State ex rel. James L.J. v. Circuit
Court for Walworth County, 200 Wis.2d 496, 503, 546 N.W.2d 460, 462
(1996), a party is not required to follow those avenues of redress. The issue is preserved for appeal by Diane's
objection to substitution in the trial court.
The Bacon-Bahr
rule is that § 801.58, Stats.,
does not apply to certain proceedings to modify divorce judgments. Parrish v. Kenosha County Circuit
Court, 148 Wis.2d 700, 703, 436 N.W.2d 608, 610 (1989). The rule has been extended to proceedings on
remand after appeal, depending on the nature of the proceedings. Id. at 704-05, 436 N.W.2d at
610. In Parrish, the rule
was applied to bar judicial substitution to remand of a divorce proceeding
after appeal where a clarification of the judgment is required rather than a
new trial. Id. at 705,
436 N.W.2d at 611. Judicial
substitution is not available "whenever a divorce judgment is reversed and
remanded for further consideration of any aspect of the judgment on the
strength of the record developed at trial." Hubert v. Winnebago County Circuit Court, 163
Wis.2d 517, 523, 471 N.W.2d 615, 617 (Ct. App. 1991).
We agree with Charles
that our remand in Olson II contemplated the taking of additional
evidence to comply with the appellate mandate to consider the fairness
objective as to both parties and the tax consequences. See Olson II, 186
Wis.2d at 295, 520 N.W.2d at 287 ("the trial court may need to take
further evidence about the parties' needs"). This is particularly true with respect to the tax consequences,
where we noted that the trial court had proceeded without taking the further
evidence it thought it needed and consequently inputted data into a computer
program which was factually incomplete.
Id. at 296‑97, 520 N.W.2d at 288. We conclude that Judge Kennedy correctly
determined that our remand required the taking of further evidence and
correctly granted the substitution.
With respect to the
maintenance and child support awards, Diane first argues that the trial court
erroneously exercised its discretion when it made the awards retroactive to the
February 6, 1992, judgment of divorce.
Diane believes it is necessary for the trial court to state reasons for
making the amended awards retroactive and that it was required to consider the
financial impact that retroactive awards would have on her.[3] DeLaMatter v. DeLaMatter, 151
Wis.2d 576, 592, 445 N.W.2d 676, 683 (Ct. App. 1989). However, DeLaMatter did not deal with retroactivity
of an amendment to an award which was timely appealed. "[I]n cases which have been timely
appealed, upon remand the trial court may, in its discretion, retroactively
adjust any portions of the original judgment which are covered by the
remand." Overson v. Overson,
140 Wis.2d 752, 759, 412 N.W.2d 896, 899 (Ct. App. 1987). The reason for doing so is to prevent
unnecessary hardship on the party who prevailed on appeal. Id. That reasoning supports the trial court's retroactive amendment
of the maintenance award here because that award was never finally
determined. To hold otherwise would rob
Charles of his success on the prior two appeals. Diane ignores the fact that maintenance was overpaid during the
appeals.
Diane also claims that
the trial court failed to consider the tax consequences to each party that a
retroactive amendment would have. The
trial court did consider those consequences and explicitly held that each party
would be responsible for the changes resulting to tax returns for 1992, 1993
and 1994. Moreover, the trial court was
not required to accommodate those consequences when determining the award after
timely appeals. We conclude that the
trial court properly exercised its discretion in making the amended awards
retroactive to the date of the divorce.
The trial court set
maintenance at $600 per month until January 1, 1997, when maintenance is
reduced to $250 per month indefinitely.
Diane argues that the maintenance award does not meet the fairness or
support objectives. She claims that there
was no reason given for setting maintenance at a level that does not allow her
to meet her monthly budget. She also
contends that it was error for the trial court to use 1992 budgets when it was
looking at 1995 incomes.
The record reflects that
the trial court used the actual incomes of the parties for the years 1992, 1993
and 1994 in determining the amount of child support based on the percentage
standard for the years the case was on appeal.
However, nothing supports Diane's contention that the trial court looked
to current income when setting maintenance.
The court looked to the 1993 income tax returns as reflecting incomes
"most approximate to the divorce" and the parties' then standard of
living.[4] Although Diane's 1995 earnings as reflected
on her W-2 form was mentioned, it was found to approximate and support the
income figure the trial court was working with. Maintenance was set at a level which was sufficient to meet what
the trial court found to be Diane's level of need based on her 1992 budget.[5] The reduction in maintenance to occur in
1997 was based on an original finding that by August 1996 Diane would be able
to earn $22,000 a year. There was no
improper mixing of current income and past budgetary needs.
Finally, we conclude
that the trial court's maintenance determination fulfills the fairness and
support objectives as applied to both parties.
To the extent Charles has income in excess of his expenses and
maintenance and child support obligations, the trial court found that
appropriate because Charles lives in a small apartment and Diane remains in the
family home. Diane must accept that an
unfortunate reality of divorce is that the economic status of the parties is
not sufficient to support them both at precisely the same level as before the
divorce. Bisone v. Bisone,
165 Wis.2d 114, 120, 477 N.W.2d 59, 61 (Ct. App. 1991). The trial court's maintenance determination
equalizes the burden of that reality.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1]
Section 801.58(7), Stats.,
provides:
If upon an appeal from a judgment or order or upon a writ of error the appellate court orders a new trial or reverses or modifies the judgment or order as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a request under sub. (1) within 20 days after the filing of the remittitur in the trial court whether or not another request was filed prior to the time the appeal or writ of error was taken.
[2] The Bacon-Bahr line of cases is a series of divorce cases decided between 1874 and 1977 beginning with Bacon v. Bacon, 34 Wis. 594 (1874), and culminating with Bahr v. Galonski, 80 Wis.2d 72, 257 N.W.2d 869 (1977). Parrish v. Kenosha County Circuit Court, 148 Wis.2d 700, 703, 436 N.W.2d 608, 610 (1989).
[3] The retroactive amendment resulted in Diane owing Charles $9062.24 for overpayment of maintenance. Diane was ordered to pay back that sum by $250 monthly offsets against maintenance. Diane calculates that it will take her approximately three years to repay Charles.
[4] The trial court determined that Diane's monthly wages were $684 per month. Diane argues that the trial court should have used the $621 per month income figure established at trial. The difference of $63 is de minimus. See Laribee v. Laribee, 138 Wis.2d 46, 51, 405 N.W.2d 679, 681 (Ct. App. 1987).