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COURT OF APPEALS
DECISION
DATED AND FILED
September 24, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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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. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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In re the marriage of:
Crystal J. Page,
Joint
Petitioner-Respondent,
v.
Greg H. Page,
Joint
Petitioner-Appellant.
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APPEAL
from an order of the circuit court for Racine County: richard
j. kreul, Judge. Affirmed.
Before Brown, C.J., Anderson,
P.J., and Snyder, J.
¶1 PER CURIAM. Greg H. Page appeals from an
order providing for sixteen years of maintenance to Crystal J. Page, Greg’s
former spouse. We disagree that the
length and amount of the maintenance award represented an erroneous exercise of
the trial court’s discretion. We affirm.
¶2 In November 2005, Greg and Crystal divorced after an
eighteen-year marriage. Their two
children still were minors. The court
ordered Greg to pay $1800 family support and held open child support and
maintenance. Over the next two years,
the court held four review hearings at which it adjusted family support, child
support and maintenance due to Greg’s temporary job loss, Crystal’s moves to
and from Florida, changes in child-placement arrangements, the older child’s
educational status and Crystal’s medical conditions, which included depression,
Bell’s palsy, back surgery in 2005 and a laminectomy and spinal fusion in 2006.
A June 27, 2006 interim order stated
that before the court could make a final determination, “it would be helpful”
to have an opinion from Crystal’s doctor regarding her long-term restrictions
and ability to work and a vocational expert or a report from the Department of
Vocational Rehabilitation.
¶3 At the time of the final review, only the youngest child,
Tyler, was still a minor and lived with Crystal. Unemployed since her back surgery, Crystal provided a December
18, 2006 letter from her treating physician, Dr. Dennis Maiman, opining that
she has permanent lifting and activity restrictions and will have permanent
back and leg pain. Crystal also advised that she retained an
attorney to pursue a twice-denied social security disability claim and spoke to
a DVR counselor and applied for retraining.
Greg asked that maintenance be terminated based on Crystal’s failure to become employed or
retrained.
¶4 The trial court ordered child support to cease and be held
open until Tyler
turned eighteen. As to maintenance, the court deemed Crystal’s physical
condition to be the overriding factor. The
court noted her “current disabling problem” of residual pain and activity
limitations since her 2005 surgery, with no suggestion that she was
malingering. The court found that, at
forty-six, Crystal
would have sixteen to nineteen years’ earning capacity if she were employed. It also found that she has not worked in the
two years since her surgery and, despite an established past earning capacity, there
was no reliable information from which to predict her future earnings. The court ordered Greg to pay monthly
maintenance of $2,150 which would increase to $2,250 upon expiration of the
child support “hold-open” for a term of sixteen years. The court ordered a dollar-for-dollar
reduction in maintenance for any SSI or SSDI Crystal receives or for her income
or W-2 earnings in excess of $15,000 annually.
Greg appeals.
¶5 Greg challenges both the amount and the duration of maintenance
the trial court set. Those determinations
are entrusted to the sound discretion of the trial court, and we will not
disturb them unless the court erroneously exercises its discretion. Hacker v. Hacker, 2005 WI App 211,
¶10, 287 Wis.
2d 180, 704 N.W.2d 371. A valid exercise
of discretion must be the product of a rational mental process by which the
facts of record and the law relied upon are stated and considered together to
achieve a reasoned and reasonable determination. Hartung v. Hartung, 102 Wis. 2d 58, 66, 306
N.W.2d 16 (1981). Where the record shows
that the court considered the facts, applied the proper law and reasoned its
way to a conclusion a reasonable judge could reach, we will affirm the decision
even if it is not one which we ourselves would have made. See
id. Because the exercise of discretion is so
essential to the trial court’s functioning, we generally look for reasons to
sustain discretionary decisions. Burkes
v. Hales, 165 Wis.
2d 585, 591, 478 N.W.2d 37 (Ct. App. 1991) (citation omitted).
¶6 Review of a maintenance award begins with a consideration of Wis. Stat. § 767.56 (2005-06)
which authorizes the circuit court to grant maintenance for a limited or an
indefinite period of time after considering nine specific factors plus any
other factors the court deems relevant. See Hacker, 287 Wis. 2d 180, ¶11. These factors are designed to further two
distinct but related objectives in the award of maintenance, support and
fairness. LaRocque v. LaRocque, 139
Wis. 2d 23,
32-33, 406 N.W.2d 736 (1987).
¶7 Here, the court expressly considered each maintenance factor,
and deemed Crystal’s
physical condition to be the overriding one.
It observed that Crystal’s
“current disabling condition” might favorably resolve in the future, her social
security claim still was uncertain and job retraining remained a possibility.
¶8 Greg contends, however, that the court relied on hearsay
medical reports to set the maintenance award.
At the September 2006 review hearing, Crystal testified about an August
2006 letter report from Dr. Maiman stating that she “continues to suffer from
severe back pain with markedly decreased range of motion and back spasm,” and
that she could work part time, “if at all,” at a sedentary job with numerous
activity restrictions. Greg did not
object during her testimony or when the report was admitted. He cannot now contest it. See
Covelli
v. Covelli, 2006 WI App 121, ¶17, 293 Wis. 2d 707, 718 N.W.2d 260.
¶9 Greg did object at the March 2007 hearing that two medical “reports”
Crystal sought
to admit into evidence were hearsay, and the court excluded them. It admitted, however, a December 2006 report
from Dr. Maiman opining that Crystal’s
back and leg pain and activity restrictions were permanent. Greg contends that the court’s comment that Crystal’s medical condition
presents an “unresolved situation” shows that the court improperly allowed the
excluded reports to influence its decision. Read in full context, however, the court’s
comment reflects that Crystal
still was awaiting resolution of her social security disability claim, attempting
to be weaned from her narcotics, and hoping to find employment.
¶10 Greg also contends that Crystal
failed to produce evidence to substantiate her claim of continuing
disability. Whether a party has met the
burden of proof is a question of law. Brandt
v. Brandt, 145 Wis.
2d 394, 409, 427 N.W.2d 126 (Ct. App. 1988).
Dr. Maiman refused to testify in person or by telephone. His December 2006 letter report, however, establishes
permanent activity restrictions and permanent pain. In addition, Crystal testified, and Greg does not dispute,
that her twelve-year history of back problems worsened to the point of
immobility in 2005, when she underwent her first surgery. Crystal
also testified that she continues to take narcotic analgesics. Crystal
is a competent witness to testify to her medical condition. See
Heiting
v. Heiting, 64 Wis.
2d 110, 118, 218 N.W.2d 334 (1974); see
also Gehin v. Wisconsin Group Ins. Bd., 2005 WI 16, ¶113, 278 Wis.
2d 111, 692 N.W.2d 572 (Butler, J., concurring).
¶11 Greg also asserts Crystal
failed to provide current information regarding her supplemental social
security or social security disability claims.
Crystal
testified that she applied for benefits before December 2005 and was denied on
more than one occasion. The trial court acknowledged
that the denials may mean that Crystal
is not disabled under social security law.
Crystal
also testified that she had engaged an attorney to appeal and is awaiting
another hearing. The court reasonably
may have concluded that Crystal’s
persistent pain despite the passage of more time may yield a different result. More importantly, however, to the extent that
Greg is arguing that the family court is bound by a social security administration
denial, we reject that premise. A denial
of SSI or social security disability benefits does not prohibit the court from
independently finding that physical problems adversely affect a party’s ability
to work.
¶12 Greg next complains that Crystal
has not sought employment within her limitations and that she only began
applying for employment in January 2007.
Greg supports his argument in part with Crystal’s testimony from earlier review
hearings. But she also testified that
Dr. Maiman expressly told her she was not ready to work. Greg also misreads other testimony. Crystal
did not say she began her job search in January 2007, but that she began
keeping track of it then. Crystal testified that
she has applied for “[a]nything I think I can do … office, airlines,
receptionist, order entry, retail [and] customer service.” The court specifically found no suggestion of
malingering. Weighing witness credibility
is for the trier of fact. Raz
v. Brown, 213 Wis.
2d 296, 306, 570 N.W.2d 605 (Ct. App. 1997).
¶13 Lastly, Greg argues that the trial court misused its discretion
by modifying the maintenance award without a showing of a substantial change in
circumstances. See Rohde-Giovanni v. Baumgart, 2004 WI 27, ¶30, 269 Wis. 2d 598, 676 N.W.2d
452. This was not a “modification,”
however. Rather, it was the first final
order of maintenance after a series of temporary orders.
¶14 Considerable testimony and evidence was presented over the
several review hearings. The trial
court’s oral comments and written decision reflect that it considered the
facts, applied the relevant law and fashioned a resolution aimed at fairness to
both parties. That is what a proper
exercise of discretion is.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.