Elisa Ellen Barone Corbeille v. Curtis Paul Barone Corbeille ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 9, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP1164 Cir. Ct. No. 2016FA1471
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
ELISA ELLEN BARONE CORBEILLE,
JOINT-PETITIONER-RESPONDENT,
V.
CURTIS PAUL BARONE CORBEILLE,
JOINT-PETITIONER-APPELLANT.
APPEAL from an order of the circuit court for Brown County:
DONALD R. ZUIDMULDER, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Curtis Barone Corbeille appeals an order denying
his motion to reduce or terminate maintenance he pays to his former wife,
No. 2021AP1164
Elisa Barone Corbeille.1 Corbeille argues that the circuit court erred by
concluding he was estopped from pursuing maintenance modification. For the
reasons discussed below, we affirm the order.
BACKGROUND
¶2 The parties divorced in April 2017 after more than twelve years of
marriage. Pursuant to a marital settlement agreement that was incorporated into
the divorce judgment, Corbeille agreed to pay Barone $1,600 in monthly
maintenance for ten years—from December 2016 until December 2026. In April
2018, the parties, without the assistance of counsel, attempted to modify
maintenance by stipulation. Because their stipulation was never approved by the
circuit court, the court later deemed the stipulation to be unenforceable, leaving
the original terms of the marital settlement agreement in place.
¶3 In February 2019, Corbeille filed a motion for revision of the
divorce judgment seeking, among other requests, a modification or termination of
his maintenance payments. Corbeille stated that he was unable to meet his
maintenance obligation because he was no longer receiving overtime hours from
his employer. Corbeille also claimed that the parties informally agreed the
maintenance payments would be reduced after the sale of their home, and the
home was sold in April 2018. Corbeille added that Barone had sufficient income
to support herself because she was living in her boyfriend’s home with minimal
expenses. At an April 2019 motion hearing, the circuit court approved the parties’
stipulation to reduce Corbeille’s maintenance payments to $1,300 per month,
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Because the parties share a surname, we will refer to the appellant as “Corbeille” and
the respondent as “Barone.”
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continuing until “December 31, 2026 or upon remarriage or death of the wife, or
by Court order, whichever comes first which is consistent with the divorce
judgment filed on April 3, 2017.”
¶4 Barone subsequently moved the circuit court for remedial contempt
based on Corbeille’s failure to pay maintenance as required under the April
stipulation. At a July 10, 2019 hearing, the court approved the parties’ agreement
for the payment of maintenance and arrears. The court also expressed its hope that
the parties would not return to court until the point when Corbeille satisfied his
arrearage payment plan.
¶5 In July 2020, Corbeille filed the underlying motion to terminate or
modify maintenance. After briefing by the parties, the circuit court denied the
motion, concluding that Corbeille was estopped from seeking maintenance
modification “based upon conduct that he has demonstrated in this case over a
number of … hearings.” This appeal follows.
DISCUSSION
¶6 Although we agree with the circuit court’s decision to deny
Corbeille’s motion, we affirm on different grounds.2 See State v. Baudhuin, 141
Wis. 2d 642, 648, 416 N.W.2d 60 (1987) (where the circuit court’s decision is
correct, we may affirm on grounds not utilized by that court). A request for a
change in a maintenance award rests within the circuit court’s discretion. Haeuser
2
In his reply brief, Corbeille contends that we cannot affirm based on the merits of his
underlying motion because this alternate argument was made by Barone for the first time on
appeal. A respondent, however, may advance for the first time on appeal any argument that will
sustain the circuit court’s ruling. See State v. Holt, 128 Wis. 2d 110, 124-25, 382 N.W.2d 679(Ct. App. 1985), superseded by statute on other grounds.
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v. Haeuser, 200 Wis. 2d 750, 764, 548 N.W.2d 535 (Ct. App. 1996), abrogated on
other grounds by Kruckenberg v. Harvey, 2005 WI 43, 279 Wis. 2d 520, 694
N.W.2d 879. Even if the circuit court fails to articulate the reasons for its
decision, we will independently review the record to determine whether there is
any reasonable basis upon which we may uphold the court’s discretionary
decision. State v. Davidson, 2000 WI 91, ¶53, 236 Wis. 2d 537, 613 N.W.2d 606.
¶7 Maintenance modification can be made “only upon a positive
showing” of a substantial change in the parties’ financial circumstances, a burden
borne by the party seeking modification. Haeuser, 200 Wis. 2d at 764. We
review a circuit court’s determination of whether there was a substantial change in
circumstances for an erroneous exercise of discretion. See Cashin v. Cashin,
2004 WI App 92, ¶44, 273 Wis. 2d 754, 681 N.W.2d 255. When determining
whether there has been a substantial change in the parties’ financial circumstances,
“the appropriate comparison is to the set of facts that existed at the time of the
most recent maintenance order, whether that is the original divorce judgment or a
previous modification order.” Kenyon v. Kenyon, 2004 WI 147, ¶27, 277 Wis. 2d
47, 690 N.W.2d 251. The circuit court “should compare the facts regarding the
parties’ current financial status with those surrounding the previous order in
determining whether the movant has established the requisite substantial change in
circumstances so as to warrant modification of the maintenance award.” Id., ¶2.
¶8 Here, the grounds for Corbeille’s July 2020 motion to modify
maintenance were substantially similar to the grounds set forth in his
February 2019 motion. The primary arguments in support of both motions were
that Corbeille was no longer working overtime hours; that he was entitled to a
reduction in maintenance after the sale of the parties’ home; and that Barone had
no need for maintenance because she was living with her boyfriend.
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No. 2021AP1164
¶9 In his 2020 motion, the factual basis for Corbeille’s last two primary
arguments remained the same. With respect to his overtime hours argument, both
the February 2019 and July 2020 motions stated that Corbeille was working forty
hours per week at Dorn’s Delivery in Appleton. In the February 2019 motion,
Corbeille stated that he was “no longer getting [overtime] hours” from his
employer, and in the July 2020 motion, he stated that his doctor recommended that
he “no longer work any overtime” due to shoulder and back issues. Thus,
although the factual basis for the inability to work overtime hours had changed,
the underlying ground for maintenance modification—a lack of overtime hours—
remained the same in both motions.
¶10 Ultimately, Corbeille failed to make a positive showing that there
was a substantial change in the parties’ financial situation between the February
2019 and July 2020 motions to justify either terminating or reducing the
maintenance award. We therefore affirm the circuit court’s order.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).
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