In MATTER OF MARRIAGE OF SELLERS v. Sellers

549 N.W.2d 481, 201 Wis. 2d 578, 1996 Wisc. App. LEXIS 445
CourtCourt of Appeals of Wisconsin
DecidedApril 9, 1996
Docket95-2730
StatusPublished
Cited by39 cases

This text of 549 N.W.2d 481 (In MATTER OF MARRIAGE OF SELLERS v. Sellers) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In MATTER OF MARRIAGE OF SELLERS v. Sellers, 549 N.W.2d 481, 201 Wis. 2d 578, 1996 Wisc. App. LEXIS 445 (Wis. Ct. App. 1996).

Opinions

MYSE, J.

Kelly D. Sellers appeals a judgment of divorce. Kelly raises the following issues: (1) whether the trial court erred when it used Kelly's earning capacity instead of his actual earnings in determining maintenance and child support obligations; (2) whether there is sufficient evidence to support the trial court's finding of Kelly's earning capacity; (3) whether the trial court erroneously exercised its discretion when it refused to award him maintenance; (4) whether the trial court erroneously exercised its discretion when it fixed Jane A. Seller's child support obligation at $150 per month; and (5) whether the trial court erroneously exercised its discretion when it divided the marital estate unequally.

We conclude: (1) The trial court did not err when it considered Kelly's earning capacity instead of his actual earnings; (2) sufficient evidence supports the trial court's finding of Kelly's earning capacity; and (3) the trial court did not erroneously exercise its discretion by refusing to award maintenance, by fixing Jane's child support obligation at $150 per month or by dividing the marital estate unequally. Therefore, the judgment is affirmed.

At the time of divorce, Kelly was thirty-eight years old, Jane was thirty-five and they had been married for approximately fourteen years. Two children, ages nine and ten at the time of the trial, were born as a result of [584]*584the marriage. The parties stipulated to joint custody of the two children and a fifty-fifty division of physical placement.

Jane was actively engaged in professional nursing throughout the marriage and is a licensed nursing home administrator in Wisconsin. She pursued various degrees in her field from a number of institutions throughout the country and is currently a home health nurse employed by a home health care agency she owns. Jane's income from various sources totaled $71,000 in 1990, $226,000 in 1991, $182,000 in 1992, and $63,000 in 1993. While her 1994 income tax returns had not been prepared at the time of the divorce hearing, Jane estimated her income for 1994 to be $44,000. Jane testified that the greater income from past years came from one-time business successes and that her earnings were dropping because of a business downturn. The trial court determined that Jane's earnings for the purpose of the divorce judgment would be $50,000 per year.

During the marriage, Kelly worked as a laborer at a local paper mill, worked as a maintenance worker and as a social worker aide at a nursing home operated by Jane's family, and for the last seven years has acted as a supervisor at a religious-based school known as the Christian Academy. Kelly works at the Christian Academy for nine months of the year and is not employed during the summer months. Kelly’s post high school education consists of two semesters of Spanish at a community college and one semester of Scriptures at a bible college. Kelly's income from 1990-94 from the Christian Academy and other sources ranged from $13,000-17,000 per year. Jane testified that at the beginning of the marriage, Kelly was earning between $25,000-30,000 per year and that their earnings [585]*585remained comparable until he started working at the Christian Academy in 1988. Jane also testified that she thought Kelly could obtain a job as a welder for $15-20 per hour. In view of the testimony and the circumstances surrounding Kelly's career change, the trial court found Kelly's earning capacity to be between $30,000-40,000 per year.

Jane brought approximately $60,000 into the marriage and their home was built on a parcel of land gifted to them by Jane's mother. Further, the trial court found that Jane provided the majority of the homemaking and child care services during the marriage. After hearing the testimony of the parties at the trial, the court declined to award Kelly maintenance; fixed Jane's child support obligation at $150 per month; and divided the marital estate seventy-five percent to Jane and twenty-five percent to Kelly. Kelly appeals.

STANDARD OF REVIEW

The award of maintenance and the division of the marital estate are addressed to the sound discretion of the trial court. Bahr v. Bahr, 107 Wis. 2d 72, 77, 318 N.W.2d 391, 395 (1982). Child support awards are also relegated to the trial court's sound discretion. Schwantes v. Schwantes, 121 Wis. 2d 607, 630-31, 360 N.W.2d 69, 80 (Ct. App. 1984). As long as the trial court reaches a rational, reasoned decision based on the application of the correct legal standards to the record facts, the trial court's exercise of discretion will be affirmed on appeal. Smith v. Smith, 177 Wis. 2d 128, 133, 501 N.W.2d 850, 852 (Ct. App. 1993).

[586]*586Further, the trial court made several factual determinations upon which its exercise of discretion was based. The trial court's findings of fact are reviewed under a clearly erroneous standard. Section 805.17(2), Stats. Under this standard, even though the evidence would permit a contrary finding, findings of fact will be affirmed on appeal as long as the evidence would permit a reasonable person to make the finding. Noll v. Dimiceli's, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575, 577 (Ct. App. 1983). To command reversal, the evidence supporting a contrary finding must constitute the great weight and clear preponderance of the evidence. Id.

EARNING CAPACITY

Kelly first contends that the trial court erred when it used his earning capacity rather than his actual earnings in determining maintenance and child support obligations. First, we recognize that a spouse to some extent has the right to choose a career path that may realize less annual income than other career paths that may be available. See Balaam v. Balaam, 52 Wis. 2d 20, 26-27, 187 N.W.2d 867, 871 (1971). However, there must be some limit to the degree of underemployment one may elect to choose when the former spouse is being presented the bill for the financial consequences of the choice. Here, Kelly's employment with the Christian Academy paid an annual salary of approximately $13,000. This is well below the amount the court found to be Kelly's earning capacity. Kelly's choice of underemployment is similar to the situation in Forester v. Forester, 174 Wis. 2d 78, 496 N.W.2d 771 (Ct. App. 1993), where before their [587]*587divorce the wife elected to become a charter boat captain with negligible earnings rather than continue her employment as a surgical technician. We held that the trial court misused its discretion when it failed to consider the wife's earning capacity as a surgical technician in determining the husband's maintenance obligation. Id. at 88, 496 N.W.2d at 775.

The trial court may consider earning capacity when determining a support or maintenance obligation if it finds a spouse's job choice voluntary and unreasonable. Smith, 177 Wis. 2d at 138, 501 N.W.2d at 854; Van Offeren v. Van Offeren, 173 Wis. 2d 482, 496,

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549 N.W.2d 481, 201 Wis. 2d 578, 1996 Wisc. App. LEXIS 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-matter-of-marriage-of-sellers-v-sellers-wisctapp-1996.