COURT OF APPEALS DECISION DATED AND RELEASED February 4, 1997 |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1416-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
GEORGE W. SCHMIDT,
Petitioner-Appellant,
v.
LINDA L. SCHMIDT,
Respondent-Respondent.
APPEAL from a judgment
and an order of the circuit court for Oconto County: EUGENE F. MC ESSEY, Judge.
Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. George Schmidt appeals a
1993 order reopening a 1992 divorce judgment as to maintenance. George also appeals a judgment awarding his
former wife, Linda Schmidt, $250 a month in maintenance and $8,500 in
retroactive maintenance.[1] George contends that no factual basis
existed to reopen the divorce judgment or to award maintenance and that the
trial court erroneously exercised its discretion in doing so. Because a factual basis existed to reopen
the divorce judgment and order maintenance, we conclude the trial court did not
erroneously exercise its discretion and affirm the judgment and order.
George and Linda Schmidt
were divorced in 1992, after twenty-six years of marriage. At the time of the divorce, both were
working in the couple's joint carpet laying business. George was awarded the business and both parties expressly waived
any right to maintenance in the marital settlement agreement. The parties were divorced in September and
George terminated Linda's employment in December. Linda attempted to draw upon her social security account but was
informed that her account did not have sufficient funds. During the years Linda worked in the carpet
business, her social security had been paid into George's account rather than
her own. Linda moved to reopen the
divorce judgment and to receive maintenance.
The court granted both of these motions and awarded retroactive
maintenance as well.
Linda asserts that
George's appeal should be dismissed as untimely. We disagree. The judgment
against George was entered on April 30, 1996, and his notice of appeal was
filed on May 14, 1996. See §
808.04(1), Stats.
George contends the
settlement agreement did not provide for Linda's continued employment in the
carpet business and that her termination is not a basis to reopen the
maintenance issue of the settlement.
Linda argues that her waiver of maintenance was done under the
expectation that she would have her job in the carpet business. The trial court found that Linda was
mistaken as to her continued employment in the business and as to the status of
her social security account when she agreed to the marital settlement.
The reopening of a judgment
under § 806.07, Stats., is a
matter addressed to the discretion of the trial court. Breuer v. Town of Addison, 194
Wis.2d 616, 625, 534 N.W.2d 634, 638 (Ct. App. 1995). The trial court may grant relief from a judgment "upon such
terms as are just" for "[m]istake, inadvertence, surprise, or
excusable neglect." Id.
at 625-26, 534 N.W.2d at 638 (quoting § 806.07(1)). The court is to use its "equitable
powers to secure substantial justice between the parties under all the
circumstances." Id.
(quoting Paschong v. Hollenbeck, 13 Wis.2d 415, 424, 108 N.W.2d
668, 673 (1961)). An appellate court
will sustain a discretionary act if the trial court examined the relevant
facts, applied a proper standard of law, and, using a demonstrated rational
process, reached a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis.2d
400, 414-15, 320 N.W.2d 175, 184 (1982).
"The determination of the amount and duration of maintenance is
[also] entrusted to the sound discretion of the trial court ...." Plonka v. Plonka, 177 Wis.2d
196, 200, 501 N.W.2d 871, 873 (Ct. App. 1993).
George contends that the
trial court erroneously exercised its discretion by opening the judgment. We disagree. There is ample evidence in the record to support the trial
court's determination to reopen the judgment.
Although the settlement agreement made no express mention of Linda's
continued employment in the carpet business, her continued employment was
certainly a factor in her decision to waive a claim to maintenance. Further, Linda's termination occurred a mere
three months after the divorce.
George's failure to make
payments into Linda's social security account is also a factor. Linda mistakenly believed that these
payments had been made into her account during her service in the carpet
shop. After her employment was
terminated, however, she learned that these payments had been made into
George's account. Because the evidence
supports the trial court's discretionary determination to open the divorce
judgment on either a theory of mistake or in the interest of justice, we affirm
the reopening of the divorce judgment.
Additionally, the
court's award of maintenance is supported by the record. The trial court examined the factors set
forth in § 767.26, Stats., such
as length of marriage, property division, and earning capacity of the party
seeking maintenance, among other factors and concluded that Linda was entitled
to $250 a month retroactive to June 10, 1993.
This determination was also within the trial court's discretion and is
affirmed.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.