Kenyon Decision Has Two Positive Results

By Attorney Gregg Herman
January 5, 2005

The Supreme Court of Wisconsin recently decided Kenyon v. Kenyon, 2004 WI 147, the first case since Rohde-Giovanni v. Baumgart, 2004 WI 27, 269 Wis. 2d 598, 676 N.W.2d 452 to consider the difficult issue of post-judgment maintenance.

In Kenyon, the parties were married for sixteen years. In a contested divorce, Dane County Circuit Court Judge Moria Krueger ordered indefinite maintenance from Ralph C Kenyon to Julie A. Kenyon of $867 per month, primarily due to Julie’s extreme physical disabilities and her lack of any earning capacity. However, since the wife was attending school, it was anticipated that she should graduate and have a job within two years, a maintenance review was scheduled..

At the time of the review hearing, the wife was working part-time and was receiving social security and disability benefits. Therefore, the circuit court found a change in circumstances warranting a maintenance reduction to $366 per month.

Five years later, the wife filed a motion to increase maintenance, claiming a deterioration of her medical condition leaving her “totally incapacitated and unemployable by any definition.” While the circuit court found a substantial change in circumstances, the court refused to modify maintenance, finding that Julie did not need it to maintain her modest lifestyle and that the court never intended the husband to be the wife’s primary source of income for life.

The District IV Court of Appeals affirmed in am unpublished decision, finding no abuse of discretion. But the high court reversed.

Justice Jon P. Wilcox wrote that, in a maintenance modification proceeding, the trial court needs to compare the facts that exist at the time of the modification hearing to the facts as they existed at the time of the most recent maintenance order, whether that is the original divorce judgment or a subsequent modification order. If the court finds that there has been a substantial change in circumstances, it is not bound by either issue preclusion or claim preclusion to order the same amount of maintenance as was awarded in the original judgment of divorce. Rather, the court should apply the two-prong test of fairness and support as required by LaRocque v. LaRocque, 139 Wis. 2d 23, 406 N.W.2d 736 (1987).

At first blush the holding of this case is so apparent, that one wonders why the supreme court found it worthy of granting review. After all, it makes no sense to use a benchmark which might have been established years ago and has already been modified in re- setting maintenance.

However, as they say in the NFL, upon further review, a different conclusion can be reached. In particular, two positive attributes can be attributed to this decision.

First, the case finally overrules Harris v. Harris, 141 Wis. 2d 569, 415 N.W.2d 586 (Ct. App. 1987), which held that the comparison in a maintenance modification proceedings is between the time of divorce and at the time of the modification, even if the order had been modified in the interim.

Second, and more importantly, the case emphasizes that the holding in Rohde-Giovanni does not overrule the standards in LaRocque.

This column criticized the Rohde-Giovanni decision for its reliance on the “standard of living” maintenance factor. As stated at that time, the “standard of living” factor is problematic in every maintenance case, and even more so in a maintenance modification proceeding. Rarely are there sufficient funds to go around when spouses separate for either party to maintain the marital standard of living. Rather than setting maintenance at an impossible level, most courts try to equalize the suffering.

After the passage of years, the “standard of living” factor becomes even more complicated. The payor may have remarried (maintenance would stop if the payee remarried), the parties may have scaled down their living expenses to make ends meet and they have made choices and decisions which can become issues in a modification hearing. For example, in Rohde-Giovanni, the trial court did not give credit to the ex-wife for supporting an adult child in college while seeming to credit the ex-husband’s hobby of flying airplanes. Many people would have placed different priorities on these expenses.

To the extent, therefore, that Kenyon emphasizes to trial courts the importance of the fairness factor, it is an important decision. While support can be an objective argument by comparing income to expenses, fairness is purely subjective. Since life is highly subjective, authorizing trial courts to utilize their judgment and discretion, rather than just their calculator, is best designed to produce equitable results in each individual, highly-variable, case.

This article originally appeared Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.