DocketNumber: No. 2011AP1974
Citation Numbers: 343 Wis. 2d 748, 2012 WI App 96
Judges: Blanchard, Dykman, Reserve, Sherman
Filed Date: 7/12/2012
Status: Precedential
Modified Date: 9/9/2022
¶ 1. Lisa Lemke appeals a 2011 amended divorce judgment which changed a 2007 award of family support to an award of child support with no maintenance. She asserts that the trial court's finding that she failed to show a substantial change of circumstances between her divorce trial and a hearing three years later was clearly erroneous. She also asserts that there was no evidence supporting the trial court's finding that she was shirking employment and education and had a significant earning capacity. She argues that the trial court erred by failing to compare her assumed earning capacity with her ex-husband's known salary. She claims that the money she received as a result of an automobile accident is insufficient to support her. Finally, she contends that the trial court erroneously exercised its discretion by relying on the court's own personal health problems to analyze the injuries she received in the automobile accident. We agree with Lisa on each point and therefore reverse.
ISSUE
¶ 2. Ricky and Lisa Lemke were married in 1983, when Lisa was eighteen years old and Ricky was
2007 DIVORCE
¶ 3. The parties were divorced in February 2007. They stipulated all issues except the questions of child support and maintenance. Judge Roethe concluded that Lisa had been impaired in her ability to earn money as a result of her years of contributions to the marriage, which is a factor weighing in favor of maintenance.
¶ 4. As part of the original proceedings, Judge Roethe considered the report of Michele Albers, a vocational rehabilitation counselor retained by Ricky. Judge Roethe observed that the problem he had with Albers' evaluation was that an evaluator in her position cannot make findings without relying on the findings of doctors as to the physical capabilities of the person, and the 2007 record was devoid of any such medical findings. As we discuss further below, we agree with Judge Roethe's observation.
¶ 5. Judge Roethe examined Lisa's budget and concluded that she and her three minor children had needs of approximately $3500 to $3600 per month, but also observed that, given the joint resources of the parties, "neither party is going to live in the style that they were accustomed to during the marriage." Judge Roethe found that Ricky earned $74,000 per year, and that he should pay family support of $39,000 per year, or $3250 per month. Because Lisa would receive tax credits for the children, that amount would give her a federal tax refund of $927 but a state tax liability of $1857. Judge Roethe limited this family support that Ricky would have to pay Lisa to three years, which is when the parties' second son would graduate from high school: "At that point, I think we. . . better have a review of this entire matter. . . ." Judge Roethe also noted:
[fit's important for the Court to set forth what's going to happen in the next three years that may change my views on whether the maintenance should last longer than three years, and one of those is the state of Mrs.*755 Lemke's health.... The second is the state of Mrs. Lemke's education .... The third thing is that.. . Mrs. Lemke needs to . . . get herself in[to] the employment market. And the fourth thing is — and this is really going to affect my judgment — what's going to happen to this automobile accident case; because if Mrs. Lemke sustained the injuries that she says she sustained and has been impaired to the extent that [she says] she has been impaired, that wasn't the problem of this marriage. That was the problem of the tort-feasor.
Judge Roethe awarded significant family support for three years due to the fact that Lisa needed support "because of her absence from the job market and all the things I've alluded to" (economic handicap as a result of her contributions to the marriage, and complaints of injuries: headaches, neck injuries, soft tissue injuries, sprained wrist, right knee problem). "At the present time these affect her ability to be gainfully employed."
¶ 6. As Judge Roethe anticipated, just before the three-year period passed, Lisa moved to extend the family support order and to include amounts therein as indefinite maintenance. By this time, Judge Roethe had retired and Judge Forbeck was assigned to the case. Judge Forbeck heard the motion for two days in 2011, and concluded that Lisa's family support should terminate with no maintenance award, and that support for the one minor child remaining at home would be $1140 per month.
STANDARD OF REVIEW
¶ 7. Standard of review plays a large part in how appellate courts review a trial court's decision to deny
We conclude we should follow the supreme court's decision in Rohde-Giovanni and review a trial court's decision to deny an extension of maintenance as a discretionary decision, including the decision whether there is a substantial change in circumstances. Under this standard of review, we affirm the trial court's decision on whether there is a substantial change in circumstances if there is a reasonable basis in the record for the trial court's decision.
Cashin v. Cashin, 2004 WI App 92, ¶ 44, 273 Wis. 2d 754, 681 N.W.2d 255 (citing Rohde-Giovanni v. Baumgard, 2004 WI 27, ¶¶ 17-18, 269 Wis. 2d 598, 676 N.W.2d 452).
¶ 8. Nonetheless, the supreme court has recognized certain baseline standards in evaluating requests to extend maintenance that could be seen as exceptions to this deferential standard, in the sense that lower courts would be reversed if in the course of exercising their discretion they make, or fail to make, these particular findings. One baseline standard is found in LaRocque v. LaRocque, 139 Wis. 2d 23, 35, 406 N.W.2d 736 (1987), where the court noted that "[a] court must not reduce the recipient spouse to subsistence level while the payor spouse preserves the pre-divorce standard of living." In the context of maintenance changes, the court stated: "The circuit court must not prematurely relieve a payor spouse of a support obligation lest a needy former spouse become the obligation of the taxpayers." Id . at 41.
¶ 9. Turning to the relevance of efforts made by parties to earn income in this context, the presence or
We believe that a party's lack of initiative or effort to become self-supporting is a relevant factor for a court to consider in awarding or terminating maintenance. We do not, however, believe that such considerations may be raised to a determinative status.
Finally, the supreme court has modified the tests courts are to use when determining modification of maintenance issues to improve accuracy and fairness:
[W]e emphasize that we have moved away from [the unjust or inequitable test] and that the correct test regarding modification of maintenance should consider fairness to both of the parties under all of the circumstances, not whether it is unjust or inequitable to alter the original maintenance award. The unjust or inequitable standard is qualitatively different than the fairness standard, since it seems, in practice, to focus primarily on a single party. We conclude that the fairness standard is the better approach, since there the focus should be on what is fair to both parties, not just one party.
Rohde-Giovanni, 269 Wis. 2d 598, ¶ 32 (citations and footnotes omitted).
¶ 10. We explained the "fairness" standard in Heppner:
"Fairness" has a special meaning under the law of maintenance: 'We believe that a reasonable maintenance award is measured not by the average annual earnings over the duration of a long marriage but by the lifestyle that the parties enjoyed in the years immediately before the divorce and could anticipate*758 enjoying if they were to stay married." LaRocque, 139 Wis. 2d at 36, 406 N.W.2d at 741. Thus, the recipient spouse is entitled, assuming that the payor spouse's income permits it, to enjoy his or her life at the standard that he or she "could anticipate enjoying" but for the divorce. See Hefty v. Hefty, 172 Wis. 2d 124, 134, 493 N.W.2d 33, 37 (1992).
Heppner v. Heppner, 2009 WI App 90, ¶ 10, 319 Wis. 2d 237, 768 N.W.2d 261.
¶ 11. Judge Forbeck first noted that in order to obtain an extension of a maintenance award, there must be a substantial change of circumstances after the divorce. Where a party seeks modification of maintenance payments, "the focus [of a substantial change in circumstances test] should be on any financial changes the parties have experienced." Rohde-Giovanni, 269 Wis. 2d 598, ¶ 30. This naturally includes factors that cause financial changes. We believe there is some question as to whether the substantial change of circumstances test applies under the unusual circumstances of this case, in which the initial maintenance award (here, an award of family support) was explicitly premised on a statement by the trial court that it was unable to make determinations as to support and fairness into the future, as required by LaRocque, because there were three relevant factors that were highly uncertain and subject to change: (1) Lisa's health; (2) her education and employment; and (3) the effects of the auto accident "that's hanging out there."
2011 MOTION HEARING-SUBSTANTIAL CHANGE IN CIRCUMSTANCES
¶ 12. We start by considering Lisa's assertion that Judge Forbeck's finding that she did not show a substantial change in circumstances was an erroneous exercise of discretion. In 2011, Ricky was earning $6000 more than in 2007. Lisa's family support had decreased from $3250 per month to $2177 per month and finally $1140 per month, as a result of two children becoming adults. All except $43,000 of the $70,000 she received from the automobile accident settlement had been used to pay attorney fees and credit card bills. She had refinanced her mortgage. As of 2011, two of her adult children were living with her while they attended school. Also new in 2011 was the fact that she had State of Wisconsin health insurance, which costs over $400 per month with a $2500 deductible. In 2011, she paid for all her prescriptions and half of the unreimbursed medical expenses for her children. She did not have this expense in 2007 because she and the children were covered by Ricky's employer's health plan.
¶ 14. Lisa was also seeing a psychiatrist, Dr. Charles Ludmer, who specialized in headaches. At the 2011 hearing, he testified that he had diagnosed her as having migraine headaches two or three days a week and chronic daily headaches.
¶ 15. At the 2011 motion hearing, Ricky did not call any medical witnesses to establish any facts or to refute the testimony of Lisa's surgeon and psychiatrist.
¶ 16. We have reviewed this evidence as it relates to whether Lisa proved that a substantial change of circumstances had occurred between the 2007 divorce and the 2011 motion hearing. Ricky does not contest the validity of the parties' circumstances we have noted above. He does not discuss the five surgeries Lisa underwent after the 2007 divorce hearing, nor the standards used by Lisa's doctors. Instead, he claims: "There was no evidence to indicate that Lisa had any new health concerns." Judge Forbeck found that Lisa's health problems were a result of the automobile accident and might have been exacerbated over time. He said that he would "go into what I see [as] the reasons for that exacerbation." However, the record does not contain those reasons. Ricky does not claim that Lisa's family support was different from that which we have noted, or that his income has not increased. He assumes, as did Judge Forbeck, that Lisa's failure to obtain gainful employment requires termination of her family support or maintenance.
¶ 17. We have considered all of the evidence in the record that was before Judge Forbeck tending to show
THREE OTHER ISSUES
¶ 18. Lisa argues that Judge Forbeck erred regarding three other issues. First, she asserts that Judge Forbeck erred when, in finding that Lisa had not shown a substantial change in circumstances, he noted that:
¶ 19. The second issue Lisa raises is a challenge to Judge Forbeck's conclusion that Lisa was shirking. He said:
I find that the situation that we're in is almost like the never ending gob stopper [a large, hard piece of candy]. I don't see that Mrs. Lemke has done one thing to try to improve her economic situation. I think she has sat back and done nothing, and she expects someone else to take care of her. I don't think that's the obligation of an ex-spouse.... She did nothing. She has various reasons why she said she did nothing.... There was no effort, no trying. She appears to be in a malaise where she just decides she's not going to do anything....
... I don't think that she has done anything. That's the problem I see. She's done nothing to go forward, other than sit around and feel sorry for herself.
Mrs. Lemke,... I think you've made a choice that you're not going to do anything for yourself to earn monies, and you want everybody else around you to support you.... There's no excuse for doing what you've done so far to date.
... [Y]ou're never gonna stop doing what you're gonna do as long as you keep getting handouts, and I don't know how I prevent that from happening ....
*765 . .. [Y]ou do need to have additional monies in order to support yourself. But you're the one that's got to get those monies. People aren't giving you money.
¶ 20. The initial problem with Judge Forbeck's conclusion that Lisa had shirked employment, requiring the termination of her family support, is that it ignores the requirement in Wis. Stat. § 767.56(5) that a divorce court consider the parties' "earning capacity." Once Judge Forbeck accepted Albers 2011 opinion that Lisa had an earning capacity of between $18,000 and $29,000, he was required to use that opinion to compare Lisa's earning capacity with Ricky's earning capacity, an undisputed $80,460 per year. Judge Forbeck did not do that; instead, he terminated Lisa's family support/ maintenance. Had Judge Forbeck compared Ricky's and Lisa's earning capacity, he was then required to determine whether, given Ricky's actual earnings and Lisa's imputed earnings, they were able to enjoy the lifestyle they enjoyed during their marriage. See LaRocque, 139 Wis. 2d at 35. A trial court must consider the earning capacity of both parties to a divorce. Wis. Stat. § 767.56(5). It does not matter if a party's income is actual or imputed. Section 767.56(5) uses the words "earning capacity," not "income."
¶ 21. A third issue is Lisa's assertion that Judge Forbeck erred by using his personal experiences with ailments he believed to be similar to Lisa's as a basis for his decision. "A trial court sitting as a fact-finder may derive inferences from the testimony and take judicial notice of a fact that is not subject to reasonable dispute, but it may not establish as an adjudicative fact that which is known to the judge as an individual." State v. Peterson, 222 Wis. 2d 449, 457, 588 N.W.2d 84 (Ct. App.
If upon an appeal from a judgment. . . the appellate court... reverses or modifies the judgment... as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a request [for substitution of judge] within 20 days after the filing of the remittitur in the trial court....
Because our remand requires only an award of maintenance, whether Judge Forbeck's ailments are similar to Lisa's will not be an issue on remand. So, unless we ignore Lisa's assertions regarding this issue, the only question is the applicability of Wis. Stat. § 801.58(7) here.
¶ 22. Judge Blanchard's concurrence explains the dilemma we face. Lisa wants relief from Judge Forbeck's use of his personal experience with ailments similar to Lisa's to reach his conclusion terminating her family support. As we explain later, Judge Forbeck's decision terminating any future maintenance is without evidentiary support, and we therefore reverse. But Lisa asks for relief resulting from the "personal experience" issue. The only possible relief for her complaint is through the use of Wis. Stat. § 801.58(7). Otherwise, we tell her that we agree with her argument, but she receives no remedy.
¶ 23. Wisconsin Stat. § 801.58(7) and its predecessors have had an extensive appellate life. See, e.g., State ex rel. J.H. Findorff & Son, Inc. v. Circuit Court for Milwaukee Cnty., 2000 WI 30, 233 Wis. 2d 428, 608 N.W.2d 679; Parrish v. Kenosha Cnty. Circuit Court, 148 Wis. 2d 700, 436 N.W.2d 608 (1989); State ex rel. Tarney v. McCormack, 99 Wis. 2d 220, 298 N.W.2d 552 (1980); Hubert v. Winnebago Cnty. Circuit Court, 163 Wis. 2d 517, 471 N.W.2d 615 (Ct. App. 1991); State ex rel. Ondrasek v. Circuit Court for Calumet Cnty., 133 Wis. 2d 177, 394 N.W.2d 912 (Ct. App. 1986). These decisions, however, do not appear to consistently determine the result when a request for judicial disqualification is made under § 801.58(7). "When the decisions of our supreme court appear to be inconsistent, we follow its most recent pronouncement." Spacesaver Corp. v. DOR, 140 Wis. 2d 498, 502, 410 N.W.2d 646 (1987) (citation omitted). Here, the most recent pronouncement concerning the breadth of § 801.58(7) lies in Findorff.
¶ 24. While we do not take sides on the issue, the majority and Justice Bradley's concurrence in Findorff do not agree on the result in divorce cases when, after remand, a Wis. Stat. § 801.58(7) request for substitution is made. Both the majority and Justice Bradley's opinions cite previous cases for their conclusions.
¶ 26. Here, our remand is for "further proceedings," which will address a new issue: the maintenance Lisa is entitled to under facts existing when a court decides that issue. Lisa is premature in asserting her "comparison of ailments" issue under the unique circumstances of this appeal. She can decide if the issue she has identified is significant enough to require a substitute judge when this case is remanded.
TERMINATION OF MAINTENANCE
¶ 27. We have concluded that Judge Forbeck's determination that Lisa did not prove a substantial
¶ 28. Sufficiency of evidence is a question of law, which we review de novo. See Walter v. Cessna Aircraft Co., 121 Wis. 2d 221, 231, 358 N.W.2d 816 (Ct. App. 1984) (citation omitted). When faced with inadequate findings of fact, an appellate court may: "(1) look to an available memorandum decision for findings and conclusions; (2) review the record anew and affirm if a preponderance of the evidence clearly supports the judgment; (3) reverse if the judgment is not so supported; or (4) remand for further findings and conclusions." Minguey v. Brookens, 100 Wis. 2d 681, 688, 303 N.W.2d 581 (1981) (citations omitted). Thus, we need to decide whether the facts the parties presented are adequate or inadequate to support a decision terminating Lisa's continued maintenance, or whether those facts exist, but the trial court failed to find them. This will determine our mandate.
WITNESSES
¶ 29. We now take the witness testimony one witness at a time, once again repeating that we will look for reasons to sustain Judge Forbeck's discretionary decision. See Murray v. Murray, 231 Wis. 2d 71, 78, 604 N.W.2d 912 (Ct. App. 1999).
¶ 30. As explained above, Dr. Fideler is an orthopedic surgeon. He first saw Lisa in 2008 for left shoulder and left wrist problems not resolved by previous operations. Dr. Fideler operated but Lisa continued to have pain in the acromioclavicular (AC) joint, so Dr. Fideler performed another operation. Lisa also had pain in her right shoulder so Dr. Fideler operated there in March 2009. He said that it was not uncommon at all for a patient having rotator cuff damage and tearing to have persistent symptoms. He did not put specific limitations on Lisa because she was unemployed, so he allowed her to continue with activity as tolerated. This did not mean that Lisa was capable of unrestricted activity. Dr. Fideler expected that the surgeries on Lisa's shoulders and wrist could affect her ability to work. He concluded that Lisa could work in some capacity, assuming she had no other physical injuries that might limit her ability to work. He had discussions with Lisa on many occasions that certain work environments would not be in her best interest. He believed that Lisa would have significant problems with being a nurse or dental hygienist. Significantly, Ricky's and Judge Forbeck's reliance on Dr. Fideler's failure to place limitations or restrictions on Lisa ignores the reason Dr. Fideler gave for not placing limitations or restrictions on her, namely, that she was unemployed so there were no limitations to consider.
Doctor Charles Ludmer
¶ 31. As we have noted, Dr. Ludmer is a psychiatrist who treated Lisa. He runs a headache clinic, and first treated Lisa in 2006. He believed that Lisa was experiencing chronic headaches and migraine head
Kevin Schütz
¶ 32. Like Albers, Kevin Schütz is a vocational rehabilitation counselor. He interviewed Lisa in 2010 and administered a formal psychometric instrument, which is an academic achievement measure to identify
¶ 33. Schütz also reviewed a report prepared by Dr. Denise Fiducia, who had given Lisa a neuropsychological evaluation. Schütz testified that Dr. Fiducia found that Lisa had difficulty with activities or tasks that would generally fall within the cognitive realm, and that Lisa had problems with her memory, information processing, processing speed, and the ability to use information that she has been given. Schütz stated that Dr. Fiducia had ruled out malingering and had "ruled out that this is being faked." Schütz testified that Dr. Fiducia's conclusions became part of the foundation for his opinions.
¶ 34. In preparation for his testimony, Schütz reviewed Lisa's medical records, the functional deficits described in the records, and the results of his examination of Lisa. His opinion was that Lisa was not able to perform in sustained employment, that she did not have an earning capacity, and that she was not employable. He believed that this condition was permanent. He updated his report in preparation for Lisa and Ricky's hearing. Schutz's report concluded:
Considering all of the limiting issues documented and described, Ms. Lemke presents as a very unlikely individual to effectively complete the requirements of competitive work. Considering all of those factors, she is not likely to have the ability to perform the quality, quantity, and in particular, the dependability of services necessary to sustain competitive employment.
Consistent with the above, there is nothing in Schutz's testimony or exhibits which supports Judge Forbeck's conclusion that Lisa was able to work, but was shirking.
¶ 35. Matthew DeVos was Lisa's trial attorney in her automobile accident case. He testified regarding the insurance companies involved in the case, and the settlements received. Lisa, Ricky, and the children received settlements. DeVos was still trying to settle some medical claims and had $4000 of Lisa's settlement to work with. He believed that eventually she would receive in the range of $2000 after the 2011 motion hearing. Ricky examined DeVos about settling the case for less than the insurance limits of the three cars involved in the accident. DeVos refused to explain why he did not take the case to trial because that was his work product. He said nothing about Lisa's health nor did he give any testimony otherwise bearing on her then-present employability.
Ricky Lemke
¶ 36. Ricky testified as to his financial condition and employment at Beloit College. His budget reflected an ongoing payment of $1500 per month for his divorce attorney's services related to other family issues. Ricky testified that Lisa's health was good when the two last lived together in March 2005, but his observations of Lisa were very limited after that time. He said that, in May 2005, he observed her holding their eight-year-old daughter on her lap at a sporting event, and a week later saw her running to her automobile without a knee brace. He saw her without a knee brace at a hearing in the divorce case but with a knee brace at a later hearing. He did not know when the knee brace was prescribed. He knew that Lisa had taken college courses in 2005 and 2006. Ricky testified that he and Lisa rarely spoke after they separated.
Lisa Lemke
¶ 38. Lisa's testimony on direct examination provides no support for Judge Forbeck's decision terminating maintenance. Lisa testified about the pain she experiences in her back:
Well, in addition to this - when we were thrown around in the car -1 mean, I've got back pain from my neck all the way down to my bottom. But in the lumbar region, I have bulging discs and what they call stenosis and degenerative - some kind of degenerative disease.
She testified that she needs to use ice packs on her back at night. She explained what she does when she gets migraine headaches:
I have to - you know, I hope that I'm at home when I have them, first of all, because I need to usually go someplace that's really dark, there's no noise, [because] noise will make it even worse, and take the medicine that he's given me, but there's still times that I'll vomit from it. You know, I get extremely nauseous. I mean, they're really hard to deal with.
As for her other headaches, she said: "Well, ever since we got hit by the - you know, both the cars behind us, you know, I have pain in the back of my head all the time and in the front, and it never goes away."
¶ 39. On cross-examination, Lisa testified that she was enrolled in school in 2007, but had to withdraw. She did not have any counseling, training, or résumé assistance because her health has been too bad. From
¶ 41. Cross-examination and redirect examination provided nothing to support Judge Forbeck's decision to terminate Lisa's maintenance. Ricky's interest in Lisa's education in 2006 tells us nothing about the medical problems her two doctors observed later. For instance, Dr. Ludmer, who first saw Lisa in May 2006, noted that Lisa has had increased academic difficulty, stopped taking courses in April 2007, and had to drop out of school in the spring of 2007.
Michele Albers
¶ 42. Albers testified that in 2011 Lisa had an earning capacity of between $18,000 and $29,000, depending on whether she obtained an associate of arts degree. Albers personally observed outward manifestations of Lisa's impairments, which included difficulty in lifting and carrying with her left arm. She knew that Lisa's left knee was worse since surgery and gave out more often. At the 2011 hearing, when questioned as to why her 2007 report did not address the physical
¶ 43. Albers was asked: "If Dr. Ludmer were to say that Ms. Lemke's chronic headaches interfered with her ability to either obtain or maintain employment, would you defer to his judgment?" Albers replied: "No, because he is a physician and not a vocational rehabilitation counselor. I don't believe -1 believe that's outside of his area of expertise to say whether someone can obtain or maintain a job." Albers nevertheless conceded that employers are not going to tolerate an employee who has to lie down or go in a dark room at unpredictable times of the day, or takes numerous breaks and is off task in his or her job.
¶ 44. In sum, at the 2011 hearing Albers testified, in effect, that she considered Lisa to be an able-bodied person, in the sense that she was employable in full-time, permanent positions, with the exception that she could not be employed as a nurse. Albers apparently drew this latter conclusion from Dr. Fideler's report of May 11, 2009, which gave a weight-lifting restriction of nothing heavier than fifteen to twenty pounds and limited reaching above shoulder level.
¶ 46. Albers' deeply flawed rejection of subjective complaints as affecting employability or earning capacity does not square with Wisconsin law. By accepting Albers' opinion rejecting subjective symptoms as credible, Judge Forbeck ignored a body of Wisconsin law which holds that subjective symptoms are a basis for a fact finder's decision which is dependent on those symptoms. While Judge Forbeck might have rejected Lisa's doctors' opinions for some rational reason, he did not state such a reason on the record, and we see no apparent reason to disbelieve the doctors.
¶ 47. In Klingman v. Kruschke, 115 Wis. 2d 124, 127, 339 N.W.2d 603 (Ct. App. 1983), we concluded that a plaintiffs statements and an examination by a chiro
¶ 48. We conclude that far from being credible, as Judge Forbeck determined, Albers' testimony depended upon rejecting Lisa's subjective symptoms relied upon by her doctors. While we rarely upset trial courts' credibility determinations, we do so when a credibility finding is clearly erroneous. Lessor v. Wangelin, 221 Wis. 2d 659, 665-66, 586 N.W.2d 1 (Ct. App. 1998) (citation omitted). Here, in the face of undisputed medical evidence to the contrary, the trial court's finding that Albers' deeply flawed testimony was credible is clearly erroneous.
¶ 49. As we have noted, Judge Forbeck did not find Lisa's doctors' testimony incredible. With the exception of finding some of Lisa's stated reasons for not working or attending school incredible, Judge Forbeck did not find the rest of her testimony or other reasons for Lisa not working incredible. We do not know which of Lisa's stated reasons Judge Forbeck found credible and which he found incredible. Nor did Judge Forbeck find the testimony of Lisa's mother incredible. Lisa's mother supported Lisa's testimony as to Lisa's disability. The only direct evidence as to Lisa's disabilities and
CONCLUSION
¶ 50. We have reviewed all the relevant evidence looking for reasons to sustain Judge Forbeck's discretionary decision. We have found none. To review, Albers, the witness Judge Forbeck found credible, considered Lisa an able-bodied person, capable of unrestricted activities with the exception of being a nurse. We conclude that Judge Forbeck's credibility determination was clearly erroneous for the reasons we have given.
¶ 51. 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 And 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 Schütz was not credible: "The problem I had with Mr. [Schütz] 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
¶ 52. 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. Although 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.
¶ 53. We conclude that Lisa has shown a substantial change of circumstances, and Ricky has again failed to provide medical evidence which challenges Lisa's medical evidence and Schutz's opinion drawn from that evidence. The problem is twofold. First, as we have noted repeatedly, there is no medical evidence to support Ricky's assertion. Evidence sufficiency is reviewed de novo. Walter, 121 Wis. 2d at 231. Second, there are inadequate facts to support Ricky's assertion.
¶ 54. We have explained our four choices when faced with inadequate facts. We choose to reverse. While a remand on the changed circumstance question
¶ 55. The amount of maintenance is another matter. This was originally litigated in 2007. The parties' circumstances have changed significantly. More to the point, an appellate court does not find facts or exercise discretion. See Harwick v. Black, 217 Wis. 2d 691, 703, 580 N.W.2d 354 (Ct. App. 1998) ("The court of appeals is not a fact-finding court." (citation omitted)); Steinbach v. Gustafson, 177 Wis. 2d 178, 185-86, 502 N.W.2d 156 (Ct. App. 1993) (discussing the limited scope of our review of discretionary rulings). Therefore, our mandate is a reversal, with instructions to set indefinite maintenance in an amount consistent with the cases we have cited, the statutory factors found in Wis. Stat. § 767.56, the twin concepts of need and fairness, and the rationale of LaRocque, 139 Wis. 2d 23.
By the Court. — Judgment reversed and cause remanded for further proceedings.
We use the parties' given names for the sake of simplicity in referring to two parties with the same last name.
A transcript of the 2007 proceedings is contained only in Lisa's appendix and not in the record on appeal. Ricky does not complain of this, and also refers to Judge Roethe's findings. He did not file his own appendix. We will use the partial transcript contained in Lisa's appendix to examine Judge Roethe's oral decision.
Another child had reached the age of eighteen but was still attending high school, though he was due to graduate in the spring of 2011. The judgment now appealed was filed May 26, 2011. Thus, Lisa had one minor child at home after May 2011.
When a trial court concludes that the relevant circumstances at a divorce trial are unknown, it is conceptually difficult to compare this with the same or different circumstances occurring later. It will always be true that there is a
Judge Roethe did not find that Lisa had migraine headaches in 2007.
Judge Forbeck used the erroneous "unjust or inequitable" standard in deciding whether a substantial change in circumstances had occurred. See supra ¶ 9 (explaining that the Wisconsin Supreme Court has "moved away" from the "unjust or inequitable" standard). "A circuit court engages in an erroneous exercise of discretion when it. . . makes an error of law. ..." Rohde-Giovanni v. Baumgard, 2004 WI 27, ¶ 18, 269 Wis. 2d 598, 676 N.W.2d 452 (citing Olski v. Olski, 197 Wis. 2d 237, 243 n.2, 540 N.W.2d 412 (1995)).
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
Judge Roethe considered Lisa's automobile accident and said: "[The automobile accident] wasn't the problem of this marriage. That was the problem of the tort-feasor." Judge Forbeck repeated this concept: "In this particular case, most of the problems that she had are attributable to the auto accident and not to the marriage." But Richardson v. Richardson, 139 Wis. 2d 778, 786, 407 N.W.2d 231 (1987), discussing a property division issue, held:
[C]ompensation for loss of bodily function, for pain and suffering and for future earnings replaces what was lost due to a personal injury. Just as each spouse is entitled to leave the marriage with his or her body, so the presumption should be that each spouse is entitled to leave the marriage with that which is designed to replace or compensate for a healthy body. We therefore conclude that the statutory presumption of equal distribution should be altered .... Instead of presuming equal distribution of a personal injury claim, the court should presume that the injured party is entitled to all of the compensation for pain, suffering, bodily injury and future earnings.
Krebs v. Krebs, 148 Wis. 2d 51, 55-57, 435 N.W.2d 240 (1989), applied the holding in Richardson to future payments under a structured settlement arising out of an automobile accident. Moreover, even if an accident settlement is relevant to a maintenance award, Lisa received $70,000 without any breakdown as to the components of that settlement. The settlement
See Justice Wilcox's concurrence for a similar interpretation. State ex rel. J.H. Findorff & Son, Inc. v. Circuit Court for Milwaukee Cnty., 2000 WI 30, ¶ 42 n.3, 233 Wis. 2d 428, 608 N.W.2d 679.
Lisa explained the courses she took after her divorce, at Blackhawk Technical College, and their rigor. In the fall of 2005, she took biochemistry. Much of the class was laboratory work, which the students did together. She testified: "We each kept our own notebook, but I mean, basically - I'm not gonna say copied off each other, because it was a group effort. You get a group product, or whatever you want to call it." In the spring of 2006, Lisa took anatomy and began receiving C and D grades on quizzes. She switched to a different section that was taught more like a high school course. The students would fill in the blanks on notes. They did not have to read anything, and the students did not have to take notes. In the fall of 2006, Lisa took sociology along with her son, Christopher. The professor wanted to look at society through movies, "so we did nothing but watch movies and learn from movies." Lisa's son was a "huge movie person," so he was able to help her. Sociology was a prerequisite for nursing classes. Lisa enrolled in a class in the spring of 2007, but after two or three weeks, "I ended up having to drop out of it because it was too overwhelming. I couldn't take - that was the first class I really - it was on me to take notes, to have, you know, recall for tests; and, you know, my memory isn't good. I can't remember - I had to do my own reading, and I can't remember what I've read so - and my headaches were really, really bad."
Judge Forbeck did not find that Lisa was not telling the truth about her post-divorce school experiences, although he