COURT OF APPEALS

DECISION

DATED AND FILED

 

November 13, 2013

 

Diane M. Fremgen

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.If published, the official version will appear in the bound volume of the Official Reports.

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.See Wis. Stat. ß 808.10 and Rule 809.62.

 

 

 

 

Appeal No.

2013AP531

Cir. Ct. No.2012FA217

STATE OF WISCONSIN

IN COURT OF APPEALS

 

DISTRICT II

 

 

 

 

In re the marriage of:

 

Amy Joy Brown,

 

††††††††† Joint-Petitioner-Appellant,

 

†††† v.

 

Scott Alan Brown,

 

††††††††† Joint-Petitioner-Respondent.

 

 

 

 

††††††††††† APPEAL from a judgment of the circuit court for Sheboygan County:Terence T. Bourke, Judge.Reversed and cause remanded with directions.

††††††††††† BeforeBrown, C.J., Reilly and Gundrum, JJ.

1††††††† PER CURIAM.   Amy Brown challenges the maintenance award in the judgment divorcing her from Scott Brown.We agree with Amy that the circuit court misused its discretion in two respects:(1) the court did not consider Scottís employment bonuses as part of his income for purposes of setting maintenance and (2) in setting maintenance, the court accepted Scottís budget which included tuition and other expenses for the partiesí adult, college-age child and post-high school education expenses for the younger child without making the necessary findings to support that decision.Accordingly, we reverse the judgment of divorce and remand to the circuit court for a determination of maintenance under the prevailing law.

2††††††† The parties were married for twenty-four years.At the time of the divorce, the parties had a seventeen-year-old daughter and an adult, college-age son.

3††††††† At an evidentiary hearing, Scott testified that his bonus depends upon his performance and the companyís financial condition.Scott earned sizable bonuses in 2010 and 2011,[1] but, at the time of the November 2012 trial, he did not know if he would receive a bonus in 2012.Scott received smaller bonuses of $2000 to $4000 in prior years, and he did not earn a bonus every year.The bonuses were applied to marital expenses.

4††††††† Citing LaRocque v. LaRocque, 139 Wis. 2d 23, 406 N.W.2d 736 (1987), the circuit court acknowledged that in determining maintenance, the court had to consider the partiesí standard of living during the marriage.The court made findings regarding the partiesí income, but the court did not include Scottís bonuses in his income, stating:

I did not put a lot of weight on the bonuses. And I didnít do it because I got the impression from Scottís testimony that the large bonuses are fairly new, meaning they werenít a big part of the marriage.There were some bonuses, but I felt that they were smalleróat least thatís the impression I hadóduring the course of the marriage.So Iím not factoring those in for the maintenance issue.

5††††††† The court found that Amy earned $6149 per month and Scott earned $11,375 per month (without including the bonuses).The court awarded Amy $2000 per month in maintenance.[2]

6††††††† Maintenance is within the circuit courtís discretion.Hefty v. Hefty, 172 Wis. 2d 124, 133, 493 N.W.2d 33 (1992).If a court misapplies the law, the court misuses its discretion, Mathias v. Mathias, 188 Wis. 2d 280, 286, 525 N.W.2d 81 (Ct. App. 1994), and commits reversible error.

7††††††† ď[A] reasonable maintenance award is measured not by the average annual earnings over the duration of a long marriage but by the lifestyle that the parties enjoyed in the years immediately before the divorce and could anticipate enjoying if they were to stay married.ĒHefty, 172 Wis. 2d at 134 (quoting LaRocque, 139 Wis. 2d at 36) (emphasis omitted).Bonuses, including bonuses received in the last years of the marriage,are appropriately considered in determining maintenance.Id. at 132-34.When the circuit court declined to consider all sources of Scottís taxable income for maintenance purposes as required by Wright v. Wright, 2008 WI App 21, ∂∂37-38, 307 Wis. 2d 156, 747 N.W.2d 690 (2007), the court failed to comply with Hefty and LaRocque and misused its discretion.On remand, the circuit court shall properly exercise its discretion in setting maintenance.[3]

8††††††† We turn to the other issue that prompts our reversal.In discussing the partiesí financial support of their adult son, the circuit court stated:ďI know there were questions about providing support for the kids, including your [adult] son.And thatís great if you can do it, but thatís really not a concern of myself as judge.ĒNotwithstanding this remark, the court accepted Scottís budget which included financial support for the son:$400 per month in tuition plus transportation and food expenses.Scottís budget also included $200 per month for the minor daughterís post-high school education fund.Amyís budget did not include post-high school education expenses for either child, although she hoped to be able to contribute to the childrenís post-high school education.

9††††††† Unless the record demonstrates the partiesí agreement to support their children past the age of majority, Miller v. Miller, 67 Wis. 2d 435, 442, 227 N.W.2d 626 (1975), ďthere is no legal obligation to support a child beyond the age of eighteen years,Ē Weiss v. Weiss, 122 Wis. 2d 688, 699-700, 365 N.W.2d 608 (Ct. App. 1985); see also Bliwas v. Bliwas, 47 Wis. 2d 635, 637-41, 178 N.W.2d 35 (1970).Our supreme court declined ďto open a Pandoraís box where payors could seek to reduce the amount of maintenance paid to recipients simply because the payors are making sizable contributions to their adult childrenís education expenses.ĒRohde-Giovanni v. Baumgart, 2004 WI 27, ∂38, 269 Wis. 2d 598, 676 N.W.2d 452.In what the supreme court predicted would be rare circumstances, a court may consider, in its discretion, a parentís contribution to the education expenses of an adult child in the context of setting maintenance.Id.

10††††† Amy testified that Scott is in charge of the tuition bills, and he tells her what she owes.When asked if she was comfortable with that arrangement, Amy replied, ďI didnít think I had a choice not to pay that.ĒIn the past, Amy contributed to the sonís tuition, but she could not afford to do so currently.

11††††† Scott testified that the $400 per month tuition figure represented one-third of the sonís tuition and that he and Amy had been paying one-third of the tuition.Amy stopped contributing to the tuition fund in August 2012, and Scott continued to provide tuition support.Scott hoped Amy would contribute to the tuition and he expects Amy to pay for one-half of their sonís automobile expenses.Scott acknowledged that even though he and Amy did not have a legal obligation to provide financial support to their son, Scott expected that Amy would do so after the divorce.

12††††† The circuit court did not find that the parties agreed to provide financial support to their adult children.Rather, the evidence was that Scott was planning to offer such support and Amy hoped to be able to do so.However, neither Amy nor Scott testified that they had agreed to continue making their sonís college tuition payments, to provide other financial support to their son, or to fund their daughterís post-high school education.The circuit court misused its discretion.On remand, the circuit court shall address this issue under the applicable law.

13††††† Finally, Amy argues that the circuit court did not address her objection to Scottís $283 monthly budget item for gifts and donations.Amy proposed $50 per month for such items in her own budget.The court did not mention Scottís budget item in its decision.We do not address this issue because Amy did not draw the circuit courtís attention to its failure to address Scottís budget item.This is the type of issue to which the circuit courtís attention should have been drawn before lodging an appellate challenge.Schinner v. Schinner, 143 Wis. 2d 81, 92-93, 420 N.W.2d 381 (Ct. App. 1988).[4]

14††††† We reverse and remand to the circuit court with directions to address maintenance under the applicable law.

††††††††††† By the Court.óJudgment reversed and cause remanded with directions.

††††††††††† This opinion will not be published.See Wis. Stat. Rule 809.23(1)(b)5. (2011-12).

 


 



[1]  Scottís 2011 bonus was $48,750.

[2]  The circuit court anticipated that maintenance would be revisited once the younger child graduated from high school approximately eighteen months after the divorce trial.This scenario, no matter how likely, did not relieve the circuit court of its responsibility to properly exercise its discretion based upon the record and the law at the time of the divorce.

[3]  Scott argues that the circuit courtís various financial arrangements rendered the partiesí postdivorce monthly incomes roughly equal.This argument is not dispositive.The circuit court did not consider all of the partiesí income in reaching the postdivorce financial arrangements.

[4]  Because the circuit court will address maintenance on remand, nothing precludes the court from looking at the partiesí budgets anew.