Opinion
No. 2014AP1166.
12-17-2015
In re the marriage of Mary Ellen MATTHEWS, Joint–Petitioner–Respondent, v. Donald Earl MATTHEWS, Joint–Petitioner–Appellant.
Opinion
¶ 1 PER CURIAM.
[ 1] Donald Matthews appeals from an order of the circuit court revising and extending his obligation to pay maintenance to his former spouse, Mary Matthews. For the reasons explained below, we affirm.
BACKGROUND
¶ 2 Donald and Mary were divorced in 2010. At the final hearing, the parties filed a written Marital Settlement Agreement which contained the following term concerning maintenance:
The husband shall pay maintenance to the wife in the amount of $430.00 per week beginning on the first day of the month of October 2010. Maintenance shall end on the last day of the month of September 2013 or until the wife remarries, dies or by court order, whichever comes first. ADDITIONAL AMENDMENTS ATTACHED.
No additional amendments are found in the record, but the following testimony given at the same hearing indicates that the language quoted here does not represent the entire agreement of the parties.
¶ 3 On direct examination, Mary's attorney questioned her as to her understanding regarding maintenance:
Q. I'm going to quickly recite the main parts of the maintenance agreement, and I want you to tell me if that is your understanding.
A. Okay.
Q. For the first three years following today, you will receive [$]430 per week from Mr. Matthews. For the next three years you'll receive [$]215 per week from Mr. Matthews. Is that—are those the amounts we discussed?
A. Yes, they are.
Q. You understand that certain things could happen to Mr. Matthews' employment that could result in reducing or suspending maintenance[,] is that correct?
A. Yes, I do understand that.
Q. And you understand that he would-if he is under those conditions wouldn't be required to make up missed payments? Do you understand that?
A. Yes, I understand that.
Q. Now, the agreement also requires that you waive maintenance above those amounts for more-and for the period after six years. Do you understand that?
A. Yes, I do.
Q. And you agree to waive maintenance beyond that which is ordered today?
A. Yes.
Q. And do you understand that by waiving maintenance or that partial waiver of maintenance, you can't come back to the court and ask for more?
A. Yes, I understand that.
On cross-examination, Donald's attorney briefly revisited Mary's understanding of the maintenance agreement:
Q. Mrs. Matthews, just to make it clear for maintenance, you understand your husband is permanently waiving any right to ask for maintenance at any time for any purpose?
A. Yes, I do understand that.
Q. But you are doing I guess in effect a partial waiver; is that correct? Well, specifically, you understand that you are giving up the right to ever come back to court and ask for more than [$]430 per week for the first three years, correct?
A. Yes.
Q. And you are giving up the right to ever come back to court and ask for more than [$]215 per week for the next three years?
A. Yes.
[ 2] Q. And you're giving up the right to ever come back to court and ask for maintenance to be extended beyond six years for any reason, correct?
A. Yes.
¶ 4 The Findings of Fact issued by the court in support of the judgment of divorce contained the following provisions regarding the parties' obligations with regard to maintenance:
10. B. Commencing October 1, 2010, Donald shall pay maintenance to Mary in the amount of $430 per Week. Maintenance for this amount shall end on the last day of the month of September 2013, or until Mary remarries, dies or by court order, whichever comes first. Commencing October 1, 2013, Donald shall pay maintenance to Mary in the amount of $215 per week. Maintenance for this amount shall end on the last day of the month of September 2016, or until Mary remarries, dies or by court order, whichever comes first. Maintenance from Donald shall not be required during any future periods of Donald's unemployment, due to involuntary job termination, or involuntary layoff. Donald shall not be required to make up maintenance from such periods of unemployment. Maintenance from Donald shall be terminated if he is unable to work from disability. Maintenance from Donald shall be reduced, if his salary is reduced. The percentage used to calculate the reduced maintenance will be the same percentage as the husband's salary reduction.
11. Donald knowingly and voluntarily waives his rights to receive maintenance from Mary now or in the future. Mary waives her right to receive maintenance above the amounts and durations specified in the parties' maintenance agreement stated orally in open court.
¶ 5 In July 2013, Mary moved the circuit court to revise her maintenance award in advance of the October 2013 reduction called for in the judgment of divorce. Over Donald's objection, the circuit court granted Mary's motion and entered an order on April 7, 2014, continuing Donald's maintenance obligation at $325 per week, indefinitely. Donald appeals.
DISCUSSION
¶ 6 On appeal, Donald raises two issues. First, Donald argues that the court erred by not giving full effect to the section of the judgment of divorce addressing what Donald views as the complete waiver by Mary of maintenance beyond that stipulated to by the parties, as summarized above, which he argues precluded the alteration of maintenance. Second, Donald argues that, even if modification of maintenance were an option available to the court, the evidence was insufficient to support the court's finding that there was a substantial change in circumstances justifying modification. For reasons that follow, we reject both arguments.
A. Standards of Review
¶ 7 Generally, issues involving maintenance are addressed to the circuit court's discretion. See Hartung v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16 (1981). Our supreme court explained in Hartung:
[T]he exercise of discretion is not the equivalent of unfettered decision-making. A discretionary determination, to be sustained, must demonstrably be made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law. Additionally, and most importantly, a discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination. It is recognized that a trial court in an exercise of its discretion may reasonably reach a conclusion which another judge or another court may not reach, but it must be a decision which a reasonable judge or court could arrive at by the consideration of the relevant law, the facts, and a process of logical reasoning.
Id. (internal citations omitted).
B. Mary Did Not Waive The Right To Modification of Maintenance
[ 3] ¶ 8 Donald argues that Mary waived the right to have her maintenance award modified. Donald bases his argument on the law of waiver, pointing out that the term “waiver” was used by the circuit court in characterizing Mary's testimony that maintenance was not modifiable. While Donald argues at length about the concepts involved in the concept of waiver, he provides no authority that waiver applies in this situation, let alone that it controls here. Instead, he cites Fobes v. Fobes, 124 Wis.2d 72, 77–78, 368 N.W.2d 643 (1985), abrogated on other grounds by Rohde–Giovanni v. Baumgart, 2004 WI 27, 269 Wis.2d 598, 676 N.W.2d 452, which Donald interprets to prohibit circuit courts from modifying maintenance if a limitation on maintenance is incorporated into a divorce judgment. We reject this argument because Fobes explicitly defeats the argument that Donald makes.
¶ 9 Our supreme court in Fobes addressed the ability of a circuit court to alter maintenance in situations in which the parties initially agreed that maintenance cannot be altered, stating:
On its face, [Wis. Stat. § ] 767.32, provides that circuit courts have the authority to modify divorce judgments with respect to maintenance payments upon petition of either party so long as the modification could have been ordered by the court at the time of the divorce. Only if maintenance has been waived under § 757.59(1c)(b) and such waiver has been incorporated into the judgment is the court foreclosed from revising the judgment with respect to maintenance.
In Dixon v. Dixon, 107 Wis.2d 492, 319 N.W.2d 846 (1982), this court was called upon to decide whether an award of limited maintenance could be modified when the original judgment had provided that the limited maintenance payments would not be increased or decreased by virtue of any change in the economic circumstances of either party. Following a trial, the court had ordered [the husband] to pay [the wife] maintenance in the amount of $500 per month for thirty months. [The wife] asserted that the divorce judgment's prohibition against modification violated [Wis. Stat. § ] 767.32, [ ] which expressly authorizes a court to revise a judgment providing for maintenance payments. [The husband] argued that, if alteration of limited maintenance payments were allowed, a significant distinction between limited and indefinite maintenance would be lost.
We stated that prohibiting modification of limited maintenance does provide certainty to the parties and curtails the number of future court hearings. However, we noted that “[t]here is nothing ... in [Wis. Stat. § ] 767.32 to indicate that the legislature intended the goals of economic certainty and reduced litigation to be achieved at the expense of spouses whose needs might change after judgment is entered.” We held that § 767.32 allows the circuit court to revise and alter a judgment respecting the amount and terms of payment of limited maintenance so long as the petition seeking revision is filed prior to the termination date of limited maintenance under the judgment.
Fobes, 124 Wis.2d at 77–78, 368 N.W.2d 643 (internal citations omitted and emphasis added). As the emphasized final sentence establishes, circuit courts have the authority to do precisely what the circuit court did here.