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Maintenance Isn't an Entitlement

By Gregg Herman
Term in Review
Wisconsin Opinions Special Supplement.

While child support has long had guidelines and standards, maintenance has only factors. The list of factors includes sufficient vagueness that trial courts have substantial discretion not only on how much maintenance to award, but whether to award any maintenance at all. Recently, the supreme court in King v King, 224 Wis. 2d 235, 590 N.W.2d (1999), addressed the issue of whether there is any "entitlement" to maintenance.

The issue of entitlement does not arise in the "traditional" marriage where the wife gave up a career to raise the children, thus allowing the husband to work substantial hours and increase his income substantially. Rather, it arises primarily in circumstances where there is a substantial disparity in income and there were no children, or in any event, no ascertainable effect of the marriage on the wife's income. Frequently, these are relatively short-term marriages.

Support for arguments both pro and con can easily be found in statutes and in case law. Wis. Stats. § 767.26, provides factors the court can consider in awarding maintenance, including:

(6) The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonable comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal.

(9) The contribution by one party to the education, training or increased earning power of the other.

The dilemma lies in simple arithmetic. It is rare that either party after the divorce will enjoy the same standard of living as during the marriage. Rarely is there extra income following commencement of a divorce action. Indeed, many times there is less income as a divorce proceeding is not conducive to encourage extra efforts at producing income, such as overtime or second jobs. At the same time, there are extra expenses due to having to fund two living premises rather than one and, usually, having two lawyers to feed, as well. Less income and more expenses equals a lower standard of living. Simple arithmetic.

Wisconsin courts have held, consistent with § 767.26, that maintenance can be based on the standard of living the parties would have enjoyed had they stayed married. Hefty v. Hefty, 172 Wis. 2d 124, 493 N.W.2d 33 (1992); see also LaRocque v. LaRocque, 139 Wis. 2d 23, 406 N.W.2d 736 (1987). In high income marriages, the trial court must individualize the standard of living, with the wife being entitled to share in the husband's "good fortune." Hubert v. Hubert, 159 Wis. 2d 803, 465 N.W.2d 252 (Ct. App. 1990)

Under that analysis, there would be few, if any, cases in Wisconsin which did not entail a maintenance award. Small wonder that the trial judge in King spoke of an "entitlement" to maintenance.

On the other hand, case law permits a trial court to deny maintenance where there is no contribution to the earning power of the other spouse. See Gerth v. Gerth, 159 Wis. 2d 678, 465 N.W.2d 507 (Ct. App. 1990); Fowler v. Fowler, 158 Wis. 2d 508, 463 N.W.2d 370 (Ct. App. 1990). In King, there was significant disparity in income. Dr. King, a neurosurgeon, had an income of $533,000 per year, while Mrs. King did not even have a high school diploma or GED. At the time she met Dr. King, she was on AFDC. The court found her earning capacity to be $13,738 per year, or about what her husband earned in a little over one week. The marriage lasted 7 years prior to commencement of the divorce action.

The trial court found the marriage to be short term and criticized Mrs. King for doing nothing to further her own earning capacity during the marriage and nothing to contribute to her husband's career. Nonetheless, the court awarded substantial maintenance for 3 years, based primarily on the very substantial disparity in income. The trial stated that "when two people choose to marry each other that their incomes become divided up and that she legally has the right to expect maintenance, to demand it, and is entitled to it." King,.at 244, 590 N.W.2d at 483. On reconsideration, the trial court found that, upon divorce, "the spouse without any earning capacity has a right to expect that there will be some continuation of the type of life-style."

The court of appeals reversed, holding that the trial court's findings negated an entitlement to maintenance. The court of appeals found that not only did the trial court misuse its discretion, but that Mrs. King was not entitled to maintenance at all.

The supreme court agreed that the trial court order constituted an erroneous exercise of discretion. First, the court held that the trial court's statement regarding an entitlement of maintenance was an error of law. Citing Gerth, the court held that there is no entitlement to maintenance in Wisconsin.

Second, the supreme court held that the trial court disregarded the statutory factors under sec. 767.26 which it was bound to consider. The court noted that most of the trial court's findings argued against maintenance, while the trial court failed to articulate findings providing a basis for an award of maintenance.

However, the supreme court disagreed with the court of appeals ruling determining that maintenance was inappropriate. Rather, the court held that an appellate court should not exercise the trial court's discretion. Instead, the case should be remanded back to the trial court to properly exercise its discretion.

So where does this case leave us? It clearly holds that maintenance does not have to be awarded in every case. It also clearly holds that the appellate court should not make the decision, but merely determine whether the trial court properly exercised its discretion.

Both holdings are important. Similar to the trial court in King, in practical experience, marriages with a disparity in income seem to commonly lend to maintenance awards, regardless of the other statutory factors. This is undoubtably due to the standard of living factor discussed above. King serves as a reminder to practitioners and courts that this is only one factor, and that the other statutory factors must come into play, as well. Therefore, there may be cases where, notwithstanding a disparity in income, maintenance is not appropriate.

The remand holding is important, as well. When considering an appeal based on a discretionary order, such as maintenance, attorneys need to remember that in family law cases, remand returns the case to the same judge who made the original orders. Hubert v. Winnebago County Circuit Court, 163 Wis. 2d 517, 471 N.W.2d 615 (Ct. App. 1991); Parrish v. Kenosha County Circuit Ct., 148 Wis. 2d 700, 436 N.W.2d 608 (1989). Nothing will stop the trial court in King from making the same order, but basing the order on different, and more appropriate, findings. The appeal then becomes a classic example of winning the battle, but losing the war.

As each marriage presents such unique fact situations, the court holding in King appropriately requires the trial court to individualize how the unique facts interplay with the statutory factors. The holding also assures trial courts that the appellate courts cannot substitute their own judgments, but the trial court's order should flow from its findings.

Finally, the case serves as lesson to practitioners to use substitutes for maintenance, such as I.R.C. § 71 payments, where possible. Clients constantly seek "guarantees" as to results. With the court free to individualize the unique circumstances of each case and apply sometimes conflicting factors, the only means of achieving a guarantee to reach a settlement is outside the confines of § 767.26. Such a settlement not only eliminates the vagaries of a trial court's discretion, but can avoid the same problem arising time and again in modification hearings in the future.

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