849 N.W.2d 900
Wis. Ct. App.2013Background
- Edith Brin appeals a de novo trial court order partially granting Bradley Brin’s request to terminate maintenance.
- Trial court reduced Bradley’s maintenance from $2500 to $0 for Edith but kept it open for potential future need due to “something catastrophic.”
- Bradley retired in 1999 and has substantial assets; Edith has substantial investments and social security income.
- Both parties are around 79, divorced for over 20 years, living on investments and Social Security, with Bradley having funded maintenance for many years.
- The prior maintenance history included an arbitration award of $2500/month under an equal division of assets, with modifications over time.
- Court affirms the trial court’s decision terminating maintenance and keeping a potential for future support if conditions change.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a substantial change in circumstances. | Brin contends change warrants modification. | Brin argues retirement and asset levels justify termination. | Yes; substantial change warranted termination. |
| Whether reducing maintenance to $0 while keeping it open was proper. | Edith argues ongoing need requires support. | Bradley argues Edith has sufficient funds to self-support. | Proper discretion; can terminate now and keep open if catastrophe occurs. |
| Whether fairness objective supports continued maintenance. | Maintenance should reflect pre-divorce standard of living. | Assets and income permit Edith to sustain herself; equal division before divorce matters. | Fairness satisfied; continuing maintenance not required given resources. |
| Whether Heppner/Dowd/Seidlitz support the result. | Edith cites those cases to require ongoing maintenance. | These cases are distinguishable given current resources and life expectancy. | Distinguishable; the court did not require continued maintenance. |
Key Cases Cited
- Rohde-Giovanni v. Baumgart, 269 Wis. 2d 598 (Wis. 2004) (substantial change in circumstances required to modify maintenance)
- Rosplock v. Rosplock, 217 Wis. 2d 22 (Wis. 1998) (mixed question of fact and law in modification)
- DeLaMatter v. DeLaMatter, 151 Wis. 2d 576 (Wis. 1989) (factors guiding maintenance analysis; relevance of statutory factors)
- LaRocque v. LaRocque, 139 Wis. 2d 23 (Wis. 1987) (touchstone factors for maintenance decision)
- Heppner v. Heppner, 2009 WI App 90, 319 Wis. 2d 237 (Wis. Ct. App. 2009) (lifestyle-based fairness principle in maintenance)
- Dowd v. Dowd, 167 Wis. 2d 409 (Wis. Ct. App. 1992) (non-permanent maintenance linked to standard of living)
- Seidlitz v. Seidlitz, 217 Wis. 2d 82 (Wis. Ct. App. 1998) (retirement/change in income affecting maintenance)