Family — permanent maintenance

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Wisconsin Court of Appeals

Civil

Family — permanent maintenance

Where the only credible evidence is that a party has no earning capacity due to factors that include an automobile accident, she is entitled to permanent maintenance.

“The main issue in this case was why Lisa did not have gainful employment or did not attend school that could lead to employment. As also occurred during proceedings in 2007, Ricky produced no medical witnesses in 2011 to dispute medical testimony about Lisa’s disabilities. Indeed, except for Albers’ opinion as to Lisa’s earning capacity, which we have determined to be without substance because it contradicts the only medical testimony, there is no evidence whatsoever to support Judge Forbeck’s conclusion that Lisa had an earning capacity and was therefore shirking. With no testimony from which Judge Forbeck could reasonably find facts countering Schutz’s testimony, the only evidence is Schutz’s opinion that Lisa has no earning capacity. Judge Forbeck found that the testimony of Schutz was not credible: ‘The problem I had with Mr. [Schutz] was that basically what he said to me is that she can’t do anything. She can’t go forward. She’s not able to perform sustained employment at this time. He felt it was permanent. I listened to that testimony, and I do not find that credible.’ Judge Forbeck’s written finding was: ‘The testimony of Kevin [Schutz] is not credible, basically when he says [Lisa] cannot do anything and she is not able to perform sustained employment at this time, and that it was permanent.’”

“As explained above, Schutz’s opinion was based on medical evidence from Dr. Fideler and Dr. Ludmer. Of course, it is in the very nature of expert testimony that an expert witness frequently gives testimony that conflicts in small or large ways with that of other expert witnesses. An expert witness may not be credible if his or her opinion is drawn from incorrect facts, or the witness exhibits non-verbal signs of deception when testifying. But the fact that two witnesses differ does not, without more, make the testimony of one incredible because of the difference in opinion. Though appellate interference with a trial court’s credibility determination is rare, we conclude that Judge Forbeck’s credibility determination as to Schutz’s testimony is clearly erroneous. ‘When a trial court makes findings of fact as to the credibility of witnesses, we will not upset those findings unless they are clearly erroneous.’ Lessor, 221 Wis. 2d at 665-66. “

Reversed and Remanded.

Recommended for publication in the official reports.

2011AP1974 Lemke v. Lemke

Dist. IV, Rock County, Forbeck, J., Dykman, J.

Attorneys: For Appellant: Bensky, Janice N., Madison; For Respondent: Kraujalis, Anthony C., Janesville