01-1705 In re: the Marriage of Finlay v. Finlay

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Further, the court properly exercised its discretion in not imputing income to the husband for his moonlighting work.

“The court carefully considered Patricia’s arguments that it should impute moonlighting income to James, and it gave a number of reasons for its decision not to do so: James’s age of 55; his testimony that he was beginning to feel the physical effects of his age; the physical requirements of his regular job; the forty-five hours per week he already worked; his new domestic tasks; Patricia’s work week of less than forty hours a week; the substantial property division; the sufficiency of Patricia’s income and James’s regular income to meet their reasonable expenses; and the court’s decision not to award James’s equitable IRA to him as separate property.”

However, while the award of $50 per month was based on factors other than a disparity in income – because of the court’s analysis of the reasonable budget of each, the employment income of each, and the child support – we are unable to identify how the court arrived at the decision to order a 50/50 split of James’s net profits from moonlighting, particularly given its reasons for not imputing income to James based on his past moonlighting. We therefore conclude we must reverse the judgment as it relates to maintenance based on James’s future moonlighting income and remand for further proceedings.”

In addition, we have difficulty in seeing how the court’s restriction on free moonlighting is reasonably necessary to ensure that James fulfills his obligation to pay Patricia 50 percent of the net profits of his moonlighting income particularly in view of the reporting and recording requirements the court imposed and the availability of remedial and punitive sanctions for James’s failure to comply with those terms.

“In summary, we affirm the judgment insofar as it ordered that James pay Patricia $50 per month in maintenance, and we reverse paragraph 21 to the judgment of divorce, which relates to James’s moonlighting income. On remand the court shall consider whether to order James to pay any particular amount or any particular percentage of his moonlighting income to Patricia as maintenance, and shall articulate the reasons for that decision in light of this opinion. The court shall also consider the prohibition on free work in light of this opinion and shall articulate its reasons for that prohibition should it decide to retain it.”

Affirmed in part, reversed in part and remanded.

Dist IV, Dodge County, Bissonnette, J., Vergeront, P.J.

Attorneys:

For Appellant: John H. Short, Ft. Atkinson

For Respondent: Raymond E. Krek, Jefferson; J. Paul Neumeier Jr., Jefferson