Family Law

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Gregg Herman

A recent Wisconsin Court of Appeals decision, which is recommended for publication, contains a startling analogy: it compares alcoholism to cancer and diabetes. The case might effectively overrule a previous court of appeals decision that is frequently cited for the proposition that maintenance payors do not need to be enablers for an alcoholic ex-spouse.

In Hacker v. Hacker, No. 2005AP223 FT (Aug. 2, 2005) (recommended for publication), the Court of Appeals reversed and remanded the judgment rendered by the Outagamie County Circuit Court, Judge Dennis C. Luebke presiding, which reduced the wife’s maintenance.

After 18 years of marriage and two children, Jeffrey and Nancy Hacker divorced in 2003. At the time of divorce, Jeffrey earned $144,000 and Nancy was collecting disability benefits of $43,500. Nancy had been terminated from her $60,000 per year job for alcohol-related issues in 2002, and it appears that the disability benefits related to her alcoholism. Jeffrey had primary physical placement of their children and, thus Nancy was ordered to pay nearly $12,000 per year in child support to Jeffrey. Jeffrey was ordered to pay Nancy $46,500 per year in maintenance. However, the circuit court scheduled a hearing to review those awards after one year.

By the time of the review, Nancy’s disability benefits ended and she was still unemployed with no income other than maintenance. The court ordered Jeffrey to pay Nancy $13,200 in child support, but reduced her maintenance to $6,500 per year indefinitely. The circuit court’s large reduction in maintenance was due to Nancy’s continued use of alcohol, despite treatment, which resulted in her inability to secure and maintain employment. Nancy appealed the reduced maintenance award.

The main issue on appeal was the impact of Nancy’s alcoholism on the support objective of maintenance. The appellate court noted that under DeLaMatter v. DeLaMatter, 151 Wis. 2d 576, 586-87, 445 N.W.2d 676 (Ct. App. 1989), an alcoholic spouse’s refusal to obtain recommended treatment may be a relevant factor in a maintenance decision. Then, in concluding that the circuit court did not properly consider the support objective of maintenance, the Court of Appeals made the following stunning proclamation:

"Unlike the alcoholic spouse in DeLaMatter, Nancy has not refused to seek treatment. She was in full time treatment for eight months in 2002-2003 at a series of inpatient facilities. By her own admission, Nancy has suffered one or more relapses since that time, but there is no indication that she will not seek further treatment or that she is denying her condition. Unsuccessful treatment is not, as a factual matter, the same as refusing treatment. Treatment for alcoholism is difficult, and many recovering alcoholics lapse more than once before they are able to control the disease. Nor is alcoholism the only disease that is difficult to treat. Not all cancer treatments succeed and many Americans afflicted with diabetes struggle to control their symptoms. The facts in this case thus make it distinguishable from DeLaMatter."

Of course, alcoholism differs significantly from other diseases (in fact, it can be argued whether alcoholism is a "disease" in the same sense as cancer, a distinction ignored by the court of appeals). While alcoholism involves an addiction, the imbiber has a degree of choice. In fact, most treatment programs are based around the control the abuser has in making such a choice. A person suffering from cancer or diabetes does not have such a choice.

By holding that DeLaMatter applies only where the abuser has not sought treatment, the case has been effectively overruled, as apparently merely seeking treatment (but not complying with its terms and conditions, which typically include a requirement that the alcoholic refrain from drinking) is sufficient for an alcoholic recipient spouse to avoid the negative consequences of DeLaMatter. Appellate rules prohibit the court of appeals from overruling their own decisions. Cook v. Cook, 208 Wis.2d 166, 560 N.W. 2d 246 (1997).

Perhaps most importantly, the case fails to even treat the trial court’s decision as within its discretion. Thus, the case stands for the scary proposition that, as a matter of law, a payor must serve as an enabler to an alcoholic who makes the choice to continue drinking. Such a proposition would be neither good law, nor good public policy.

Gregg Herman is a shareholder with Loeb & Herman, S.C. in Milwaukee, which practices exclusively family law. FamLawUpdate, a free e-mail service of Loeb & Herman, is available by going to www.loebherman.com or by sending an email.