In RE MARRIAGE OF OLSON v. Olson

520 N.W.2d 284, 186 Wis. 2d 287, 1994 Wisc. App. LEXIS 790
CourtCourt of Appeals of Wisconsin
DecidedJune 29, 1994
Docket93-2447
StatusPublished
Cited by4 cases

This text of 520 N.W.2d 284 (In RE MARRIAGE OF OLSON v. Olson) 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 RE MARRIAGE OF OLSON v. Olson, 520 N.W.2d 284, 186 Wis. 2d 287, 1994 Wisc. App. LEXIS 790 (Wis. Ct. App. 1994).

Opinions

BROWN, J.

The issue is whether the trial court misused its discretion when upon remand it justified its maintenance award by reasoning that maintenance based on equalization of income is "self-evidently fair." We hold, consistent with LaRocque v. LaRocque, 139 Wis. 2d 23, 406 N.W.2d 736 (1987), that a fifty/fifty division is not self-evidently fair; therefore, the trial court's mechanistic approach was a misuse of discretion because the trial court did not properly consider the fairness objective of maintenance determinations. Thus, we reverse the trial court order and remand with directions.

This case is before us for the second time. The first time, Charles M. Olson appealed the maintenance award to Diane C. Olson, now known as Diane Wendorf, in their divorce judgment.1 Olson v. Olson, No. 92-1013, unpublished slip op. at 1 (Wis. Ct. App. Mar. 17,1993) (Olson I). In Olson I, we stated:

[T]he family court's decision is devoid of any consideration of the effect of the maintenance award on [291]*291Charles' economic situation. This is especially troubling since the court's award appears to leave Charles in a markedly more distressed financial position than Diane.
As far as it went, the family court's decision as to why an equalized income approach to maintenance was the proper starting point is well reasoned. However, the [family] court did not further address whether the result produced by this premise was fair to Charles. We reverse the maintenance award and remand for this exercise.

Id. at 4-5. We also stated that the trial court was free to take further evidence if needed.

During the remand proceedings, the trial court interpreted our decision solely as a remand for clarification of its previous decision. The trial court reiterated and clarified its findings of fact and its determinations related to the remand issues.2 The trial court found Charles' salaried and self-employment income to total $42,5693 after subtracting social security taxes. It found Diane's income as $6886 after subtracting social security taxes. It further found that, beginning in 1996, Diane's probable yearly income would be $22,000. After equalizing the income, the trial court awarded $17,841 maintenance until August 6, 1996 and $11,126 per year thereafter. The trial court then calculated child support paid by Charles as $7162 based on 25% of $28,649, an equalized income of $24,727 plus social security tax added back in. Thus, [292]*292Charles was left with an income of $17,565 (before income taxes but after social security taxes) and Diane was left with an income of $18,545 (before income taxes but after social security taxes).

The trial court acknowledged that it was not leaving Charles with enough money to meet his monthly budget of $1590, but explained that its decision was fair because equalization of the parties' incomes was "self-evidently fair."

Another remand proceeding was held on Diane's motion asking the trial court to clarify the tax consequences of its decision. The trial court, using a computer program, estimated that Charles would have an after-taxes monthly income of $1109 and Diane would have an after-taxes monthly income of $1234. However, the trial court noted that these figures do not take into account Charles' higher social security tax on his self-employment income. The trial court justified the disposable income disparity by stating that "[Charles'] much greater FICA contribution entitles him to greater social security benefits when he retires."

"The determination of the amount and duration of maintenance is entrusted to the sound discretion of the circuit court, and this court will not disturb the determination of the circuit court unless the circuit court [misuses] its discretion." LaRocque, 139 Wis. 2d at 27, 406 N.W.2d at 737. The exercise of discretion, however, "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." Id. (quoted sources omitted).

The touchstone of analysis in reviewing a maintenance award is the list of statutory factors enumerated [293]*293in § 767.26, STATS. LaRocque, 139 Wis. 2d at 31-32, 406 N.W.2d at 739-40. The § 767.26 factors are designed to further two objectives: support and fairness. LaRocque, 139 Wis. 2d at 33, 406 N.W.2d at 740. The former ensures that the payee spouse is supported in accordance with the needs and earning capacities of the parties; the latter ensures a fair and equitable arrangement between the parties in each individual case. Id.

Our primary focus here, as it was in Olson I, is on the fairness factor. Charles argues that the trial court misused its discretion during the remand proceeding' because it applied a fifty/fifty division of income "without regard to the needs of the paying party or the facts and circumstances of any individual case." We agree and hold that the trial court misused its discretion when it presumed that equalizing incomes is "self-evidently fair" to both parties.

Under LaRocque and its progeny, it is appropriate in a marriage of many years to consider an equal division of total income as a starting point in determining maintenance. LaRocque, 139 Wis. 2d at 39, 406 N.W.2d at 742. However, an equal division is not the determinative factor which controls the ultimate award. Bisone v. Bisone, 165 Wis. 2d 114, 120 n.3, 477 N.W.2d 59, 61 (Ct. App. 1991). Rather, the § 767.26, STATS., factors and the related support and fairness objectives determine the ultimate award and "require that the party seeking maintenance have a standard of living reasonably comparable to that enjoyed during the marriage." Id. at 119-20, 477 N.W.2d at 60-61. Moreover, "[a] reasonably comparable standard of living must be accomplished without unreasonable hardship to the supporting party." Id. at 120, 477 N.W.2d at 61.

[294]*294We stated in Kennedy v. Kennedy, 145 Wis. 2d 219, 223, 426 N.W.2d 85, 87 (Ct. App. 1988), that the family court "[does] not discharge its decisionmaking responsibility with respect to maintenance simply by equalizing or attempting to equalize the post-divorce income between the parties. That mechanistic approach does not satisfy either goal of maintenance."

Here, the trial court concluded that Diane would have about $125 per month more disposable income for her personal needs than Charles would have for his. The trial court dismissed the $125 amount as de minimis and stated that it was fair that Charles and Diane have the same amount of disposable income. However, the trial court failed to explain why, given their needs, the result was a "fair and equitable financial arrangement between the parties ...." LaRocque, 139 Wis. 2d at 33, 406 N.W.2d at 740.

The record shows that Charles was left with disposable income insufficient to meet his expenses. The record does not show what portion of Diane's submitted expenses were her.

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In RE MARRIAGE OF OLSON v. Olson
520 N.W.2d 284 (Court of Appeals of Wisconsin, 1994)

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520 N.W.2d 284, 186 Wis. 2d 287, 1994 Wisc. App. LEXIS 790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-olson-v-olson-wisctapp-1994.