Judicial discretion is ripe for review

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Does the Wisconsin Court of Appeals read this column? Maybe; maybe not. But shortly after I wrote about the District I Court’s decision in Heppner v. Heppner, No. 2008AP2020 (Wis. Ct. App. May 5, 2009) (recommended for publication), the court made corrections to paragraph 15 of its opinion.

In the original opinion, the appellate court reversed the trial court’s decision on maintenance (and on property division), but rather than remanding to the trial court for reconsideration, the Court of Appeals, under Wis. Stat. Sec. 808.09,( http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=808.09) modified the trial court’s maintenance order to extend beyond May 30, 2012 for an indefinite term.

That was huge. By doing so, the court did not allow the trial court to consider revising the amount of maintenance. It appeared that the trial court ordered a greater amount of maintenance than it would have otherwise ordered, in exchange for a shorter period of time. Therefore, by modifying rather than remanding the case, the appellate court essentially gave the appellant her cake and let her eat it, too.

In its corrected opinion, (made following the husband’s motion to reconsider), the Court of Appeals held that, in light of the trial court’s setting the 50-50 split based on its imposition of the limited-term maintenance, the matter is remanded to the trial court for an evaluation whether, consistent with this opinion, the 50-50 split should be modified.

The corrected decision did not address the property division issues on stock options, also criticized in this column.

Ripe for Review

The husband has filed a motion with the Wisconsin Supreme Court to review the decision. Were I reviewing the petitions, I’d grant this one.

First, other than a case argued this term that involves more probate than family law issues, the high court has no family law cases on its current docket. Second, the issue of the limits of a trial court’s discretion seems to be ripe for Supreme Court review.

Last year in this column, I criticized the Court of Appeals’ decision in Wright v. Wright 2008 WI App 21, (http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=31048) “Decision Appears to Limit Trial Court’s Discretion,” Wisconsin Law Journal, Jan. 7, 2008. In Wright, the appellate court held that the trial court did not properly exercise its discretion in awarding maintenance, despite issuing a lengthy, well-considered decision. The nagging question is whether the trial court went beyond the limits of its discretion or whether the appellate court simply disagreed with its decision. Unlike Heppner, however, the remand allowed the trial court to reconsider its decision.

The Supreme Court denied the petition for review.

Certainly there have to be limits to a trial court’s discretion. Four years of maintenance in a 32-year marriage, as the trial court ordered in Heppner, certainly stretches the limits of discretion in anyone’s book. But, a decision that an underwater stock option has no value — a finding specifically allowed by a different district of the Court of Appeals (are the districts really one court?) seems to be within the ball park of reasonable results, which could be reached by a court that heard the evidence. Yet, that part of the appellate court’s decision was not affected by the modification.

Finding the 50-Yard Line

I’ve always felt that the exercise of discretion can best be understood by considering a football field. If the middle line is the 50, trial courts can play, at a minimum, within the 40s, and probably within the 20s. The reason is that there are numerous factors that go into a maintenance determination — at least 15 if you parse the subsections — and property division — at least 16. In both cases, they’re followed by a catchall, “[S]uch other factors as the court may in each individual case determines to be relevant.” (Side note: Wouldn’t it be easier to eliminate all the other factors and just say “whatever the court determines to be relevant?”)

Since so many factors may come into play, trying to handcuff trial courts to the 50-yard line would result in limitless appeals and reversals. So, the appellate courts are supposed to allow the trial courts some leeway. It is only when the trial courts are in the end zone, or in the parking lot, that the appellate court should step in. After all, hearing and seeing the witnesses allows the trial court to make findings of credibility, which are intractably part of the exercise of discretion.

This search for the 50-yard line is not an easy one. It’s been many years since the Supreme Court has given guidance to the family courts on the exercise of discretion and its limits. It’s time to take another look.