Lemke v. Lemke
820 N.W.2d 470
Wis. Ct. App.2012Background
- Lisa Lemke appeals a 2011 amended divorce judgment which converted a 2007 maintenance award into child support with no maintenance; argues lack of substantial change in circumstances and errors in evaluating earning capacity; seeks indefinite maintenance.
- 2007 divorce awarded maintenance due to Lisa's contributions to marriage and health injuries from a 2005 automobile accident; Judge Roethe found Lisa could become self-supporting with education and training, contingent on health improvements.
- 2011 motion before Judge Forbeck terminated maintenance and set only nominal child support for the remaining child; Lisa presented medical testimony from surgeons and a psychiatrist indicating ongoing disability; Ricky presented limited vocational evidence.
- The appellate court reverses, finding substantial change in circumstances and that Lisa has no earning capacity due to medical conditions, awarding indefinite maintenance and remanding for setting amount consistent with standards.
- The court discusses proper standards for maintenance modification (fairness, LaRocque), the need to consider both parties’ earning capacity (767.56(5)), and potential issues related to remand proceedings and substitution of judges under Wis. Stat. § 801.58(7).
- The concurrence notes concerns about substitution procedure on remand but agrees with the substantive reversal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Substantial change in circumstances? | Lemke shows health, education, and accident effects; change is substantial. | Forbeck found no substantial change; health issues not enough. | Yes, erroneous discretion; substantial change proven. |
| Maintenance termination shirking evidence? | Albers ignored subjective symptoms; Schütz supports no earning capacity. | Albers credibility assumed Lisa could work; maintenance should end. | Termination of maintenance unsupported; earning capacity not proven by record. |
| Earning capacity comparison required? | Court must compare Lisa’s earning capacity with Ricky’s actual earnings. | Court relied on imputed capacity without proper comparison. | Error: required to compare earning capacities under §767.56(5). |
| Use of the judge’s personal ailments as basis? | Judge Forbeck relied on personal experiences; improper surrogate witness. | Not addressed as remand may fix issues. | Remand to address evidence; substitution issue only on remand per Findorff discussion. |
Key Cases Cited
- Rohde-Giovanni v. Baumgard, 269 Wis. 2d 598 (Wis. 2004) (standard of review for maintenance modification; fairness emphasis)
- LaRocque v. LaRocque, 139 Wis. 2d 23 (Wis. 1987) (don’t reduce recipient to subsistence; consider fairness under all circumstances)
- Heppner v. Heppner, 2009 WI App 90, 319 Wis. 2d 237 (Wis. Ct. App. 2009) (fairness-based maintenance standard; lifestyle before divorce)
- Vander Perren v. Vander Perren, 105 Wis. 2d 219 (Wis. 1982) (courts consider lack of effort as a factor, not determinative)
- Cashin v. Cashin, 2004 WI App 92, 273 Wis. 2d 754 (Wis. Ct. App. 2004) (establishes discretionary review for modification decisions)
- State ex rel. Findorff & Son, Inc. v. Circuit Court for Milwaukee Cnty., 2000 WI 30, 233 Wis. 2d 428, 608 N.W.2d 679 (Wis. 2000) (extrinsic substitution/recusal procedural considerations under §801.58(7))
- Klingman v. Kruschke, 115 Wis. 2d 124, 339 N.W.2d 603 (Wis. Ct. App. 1983) (credibility and reliance on medical testimony in determining earning capacity)