Decision contains valuable lessons on maintenance

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Gregg Herman

As regular readers of this column know, I am sometimes mystified by the decisions of the Publication Committee and wish there were more input by practitioners in them.

Such was the case initially upon reading Jantzen v. Jantzen, No. 2006AP1690 (Wis. Ct. App. Jun. 19, 2007) (recommended for publication). I soon changed my mind; the opinion contains several important lessons for practitioners and judges regarding maintenance.

The decision, from District I of the Wisconsin Court of Appeals, contains facts that were fairly simple, but the procedural history was somewhat convoluted. Ultimately, the trial judge ordered Louis Jantzen to pay Jean Jantzen child support and 11 years of maintenance following a contested trial. The trial court’s decision was somewhat unclear and even contradictory, but in the written judgment, there was no provision for a review of maintenance at any given time.

Prior to the scheduled termination of maintenance, Jean filed a motion seeking to extend the term of maintenance. Judge Michael P. Sullivan of the Milwaukee County Circuit Court, who inherited the case, as explained in a footnote to the decision, granted Jean’s motion and extended the term of her maintenance five additional years. He justified this based upon the termination of child support and the current economic circumstances of the parties. Louis appealed.

In an unanimous opinion authored by Judge Patricia S. Curley, the court of appeals reversed and remanded, holding that there was no substantial change in circumstances warranting an extension of maintenance.

The court concluded that it appeared that Jean’s financial circumstances actually improved more than Louis’s since the time of the divorce. In addition, the court concluded that cessation of child support did not constitute a substantial change of circumstances, since it was anticipated by the court at the time of the divorce that child support would end in approximately eight years. Moreover, the court noted that the money paid by Louis for child support was for the support of the child, not Jean.

Lessons Learned

There are several.

First, the oral statements of the trial court are only important to the extent they are carried over into the written judgment. If there is a disparity between the two, as occurred here, the written judgment controls. It is possible to “lose the battle, but win the war,” by drafting a judgment which says what a lawyer wants it to say, rather than what the judge actually said. If there is a dispute, the case should be returned to the trial court for reconsideration or clarification.

Second, and relatedly, to all trial judges: There are many very sound reasons to render bench decisions at times, such as the parties’ need for an immediate order, time and caseload pressures, and to follow recommendations given at judicial education seminars. On the other hand, you can save the parties, counsel and maybe even yourself, much time and grief by rendering a written decision — and it is especially appreciated in cases where the attorneys and/or their clients cannot “play nice” together. Do you really want to see them again on a motion for clarification — or see your name on page one of an appellate decision, followed by the words “reversed and remanded”?

Third, often maintenance is premised on the income left over after subtracting child support from the payor’s net income and after adding it to the payee’s net income. While this is not the only means of calculating maintenance [See Hon. Mark A. Warpinski, “Demystifying the Maintenance Calculation: One Judge’s Approach,” 25 WJFL 104 (Oct. 2005)], it is the most common method. [See Gregg Herman,

“The Family Pot: Calculating Child Support and Maintenance Orders,” 26 WJFL 26 (January 2006)]. When the common method is utilized, if the payee is going to seek an increase in maintenance after child support ends, the judgment should clearly reflect that income from child support was considered in setting maintenance or the cessation in child support will not constitute a substantial change in circumstances.

Fourth, and finally, the word “substantial” in Wis. Stats. sec. 767.59 is not meaningless. A change in circumstances in and of itself if not sufficient to modify support. Changes occur all the time as people’s financial fortunes wax and wane. The word “substantial” is designed to avoid continuous litigation. While it is never defined in Wisconsin law, practitioners need to carefully analyze modification cases before filing to ensure that a change in circumstances is more than just than the normal ebbs and tides of everyday life.

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. Herman can be reached by e-mail at gherman@ loebherman.com.