*1 Sсipior 185, Shea, 190, 2d 199 v. 252 Wis. 31 N.W. logical (1948). circuit Thus there no reason for the unanimity impose requirement across light verdicts. In of our reversal of grounds, need the er other we not determine prejudicial. roneous instruction was forth, For the reasons set reverse the we the circuit court and to the circuit remand the cause hearing. court for a new
By Judgment reversed; cause remanded. Court. — Fobes, Petitioner-Respondent,
Clarice V.
v. Arnold E. Fobes, Appellant.†
Supreme Court Argued April May 1985.—Decided No. 1985. 83-1640.
(Also reported 643.) N.W.2d Motion pending. † reconsideration not This motion was press. disposition at decided the time the volume went Its reported bewill in later volume. *2 appellant
For the by Donald D. there were briefs Johnson, Jeffrey Younger Johnson, Kilkelly Lee, W. and S.C., argument Niehol, Madison, by & and Mr. oral Younger. petitioner-respondent by
For there were briefs Niemann, John M. Ullsvik Hibbard, Ullsvik, and Neu~ berger Lorenz, Wаtertown, argument by & oral and JohnM. Ullsvik. CALLOW, appeal
WILLIAM G. J. is an This an order of Dodge the circuit modifying for county court terms of a divorce respect with to main- payments. tenance appeal The by was certified appeals by accepted pursuant and this court (Rule) 809.61, sec. Stats. We affirm the circuit court. The presented issue appeal on is whether a divorce incorporating by entered into pаrties providing for limited term circuit court. modified January and Arnold Fobes married Clarice were 28, 1961, and the divorce action was commenced on January 18,1980. commenced, At the time the action was fifty-three age years Fobes, Mrs. Fobes was fifty-four. parties years age. son, one sixteen general manager Pepsi-Cola Mr. Fobes was the plant high in Watertown. Mrs. Fobes had a school education and had not worked outside of the home since divorce, being 1963. At the time of the Mrs. Fobes was allergy treated arthritis for an which caused eyes her to water. August 26, 1980,
On stipula- entered into a *3 regarding tion property pay- division and maintenance ments. provision contained a for main- tenance which stated: respondent “The pay peti- or his estate shall to the family tioner as and for maintenanсe the sum of $250.00
per week, through the office of the Clerk of Courts for Dodge County, Wisconsin, commencing Monday on the immediately following granting the of the divorce. Said family period maintenance shall continue for a of three (3) years petitioner or remarriage until the death of or of petitioner, the whichever occurs first. The aforesaid family award of purpose pro- maintenance is for the of viding petitioner might income to the so that she secure necessary the employable.” education to become Mrs. Fobes approximately percent, received $50,- 000, of property. the marital property Part of the awarded to Mrs. parties’ home, Fobes was the in which there was approximately $40,000 equity. The divorce granted August 28, 1980, and of incorporated divorce stipulation. the terms of the 1980, In Mrs. two-year Fobes enrolled in a in course social work at a technical school in Watertown. After completing year one course, this she concluded that employment would unable to secure in the
she social nursing in a work field. In 1981 she enrolled assistant completing course, in Fort Atkinson. After course one-year program she enrolled in in Fort to Atkinson practical a licensed she become nurse. While success- fully completed portion program, classroom grade incomplete she of received a she did because not complete required practicum Fort one-week at Atkin- Hospital. son Memorial Mrs. stated that rea- Fobes complete practicum son did she not was that she pressure caring could not patients stand of for four at attempted prac- time. repeat one She has not to complete 1982, ticum since she failed it in and does not so. intend do January,
In 1983, began Mrs, employ- to seek private registered ment as a nurse. She with a number placement agencies in Milwaukee, January and from through 1983, April, private she worked as а nurse day days between one and thirteen and a half a month. To commuting cut down eight- on the time involved in days, hour work she chose to work shifts where she stay patients’ would twenty-four-hour homes for a period. period For the January between May 2, 1983, Mrs. $1,135.15 Fobes earned a total private nursing from her activities. April 4, 1983,
On Mrs. Fobes filed motion regard the maintenance with *4 payments. motion, that, In her al- Mrs. Fobes stated though diligently attempted she had train to еducate and herself to self-supporting, become she had been unsuc- doing cessful in so, duty pay to and unless Mr. Fobes’ August, maintenance past was continued the scheduled date, termination no she would have source of income. The motion also stated that Mr. Fobes had a sub- stantial increase income since the time the divorce was granted pay- continue and was able to maintenance indefinitely. ments
Testimony parties at was taken both a motion hearing May 11, held on 1983. The court issued a memo- August 8, randum decision on The court held that 1983. “power authority” stipulated it and to revise the had judgment. that, of a terms divorce The court noted judgment incorporating before a terms of stipulation may modified, must be a be there substantial change such that it would material in сircumstances unjust party strictly to the terms of to either be hold judgment. Fobes a credi- The found that Mrs. was court malingerer. also and not a The court ble witness was ability approximately had she to earn found $283 per required The Mrs. month. court concluded that Fobes required permanent maintenance, and the di- this judgment noted that vorce amended. court some high monthly expenses of Mrs. Fobеs’ claimed seemed ability that no had made on Mr. record been Fobes’ hearing pay A was to maintenance. further scheduled ability determine Mrs. Fobes’ needs Mr. Fobes’ pay. hearing, Until the time of the further judgment. provided was to continue at the rate in the 1983, modifying August 15, on An order entered provide receive that Mrs. Fobes the divorce per week permanent maintenance in the amоunt $250 by the court. time it was modified until such as August appeal We filed a on 1983. notice of accepted appeal certification appeals February 5,1985. presented
The issue a circuit court has is whether authority provision in a divorce par- providing for limited term maintenance where original stipulated mainte- ties to the terms provision. nance *5 767.32, Stats.,
Section forth sets thе circumstances judgment under may which a divorce be revised. That states, part: section in relevant “(1) judgment providing After a . . . mainte- payments may, nance under . . s. 767.26 . court time, petition time to parties, on the either . judgment . . respecting revise and alter such amount of such payment maintenance . . . and the there- of, any .. . judgment respecting any make might the matters which such have made in original action, judgment except that a which waives payments party maintenance for either there- shall not after respect be revised or in that altered nor shall the provisions judgment respect of a with final division subject property revision modification.” face, 767.32, On its provides sec. that circuit courts have authority judgments respect with petition upon party maintenance of either long so by as the modification could have been ordered Only court at the time of the divorce. if mainte- nance has been waived and such waiver has been in- corporated judgment into the is the court foreclosed from revising judgment respect with to maintenance.
In
Dixon,
Dixon v.
Wis. 2d
We stated certainty provide and the maintenance does hearings. How- of Id. the number future court curtails ever, nothing ... sec. is in we nоted “[t]here legislature goals intended indicate that the the 767.32 to litigation certainty to be of economic reduced might spouses expense of achieved at the whose needs change judgment after is Id. at 508. held entered.” We that sec. 767.32 the circuit court to revise and allows respecting alter of a the amount and terms payment long petition of limited maintenance so as seeking prior of revision is filed to the termination date judgment. limited maintenance Id. under regarding provision appeal an of a Dixon involved It by the circuit court. ordered maintenance which was parties. Mr. stipulation a between did not involve rest this case should in that our decision asserts Rintelman, Marriage v. holding Rintelman our (1984). The issue 2d 348 N.W.2d Wis. provision in presented was Rintelman pro stipulation which incorporating a payments lifetime of vided for maintenance for the public 767.32(3), Stats., payee either violated sec. pay policy parties that understood when it was payee Sec. if remarried. ment even would continue provides that, payee maintenance 767.32(3) if remarries, payments order shall vacate the the court requiring upon applicаtion payments payer. into a Rintelmans had entered provided payments would con that maintenance which hearing, the divorce tinue for wife’s At lifetime. judge specifically questioned the trial Mr. Rintelman on understanding his of whether the would con tinue even if remarried, his wife and he stated it was understanding they his would continue. 118 2dWis. at subsequently 590. Mrs. Rintelman remarried, application Mr. Rintelman filed an termination payments. of the maintenance The trial court denied application. his We affirmed. that,
We agreed concluded because Mr. Rintelman had agreement lifetime and that support incorporated into judgment, estopped the divorce he was seeking obligation. termination of that Id. at 589. *7 We that that, party noted this court has held when a agrees to a disposition pаrties’ to a certain of the obligations agreement financial part and the is amade judgment, party estopped is thereafter from seeking agreement. release from the terms of the Id. at 594. We discussed present the elements which must be estoppel before apply: doctrine will “. . . 11 that need be shown [A] to constitute an estoppel parties is that both stipulation entеred into the freely and knowingly, that the overall settlement fair is policy, equitable illegal against public and not or party and that one subsequently seeks to be released grounds the terms of the court order on the that the court could not have entered the order it did without the parties’ agreement.” Id. at 596.
A review of the incorporated which was into the Fobes’ divorce requi- shows thаt site estoppel elements for were not met. The final estoppel element is that the court could not have entered parties’ agreement. order it did absent the In Rintel- man, agreed husband to make maintenance lifetime, his regardless wife for her if she remarried. The trial court would have been unable to enter such an agreement. parties’ By contrast, order without agrеed to make maintenance to his wife period for a in order limited of time to allow Mrs. Fobes necessary employable. to secure the education to become The court could have entered such an order agreed Thus, not the it. we conclude that applies rule set forth in Dixon this hold case. We incorporat- the circuit court revise a ing stipulation parties respecting the amount and payment terms of long of limited maintenance so as the petition seeking prior revision is filed to the termination date of judgment. limited maintenance under the question whether,
We turn particular now to the in this case, the modifying judg- trial court was correct ment. developed This court previously has two tests for reviewing a trial judg- court’s modification of a divorce ment. entirely “. . rests on a factu . Where the modification al determination the test is whether determination weight great contrary is to the of the evidence. Where primarily of dis
the modification rests
on an exercise
dis
cretion the test
is whether there was an abuse of
MacDonald,
cretion
Wis. 2d
the trial
Thies v.
court.”
303-04, 187
(1971).
N.W.2d 186
*8
obligation
support
The trial court’s modification of a
pаrt of the
involves an exercise of discretion on the
therefore,
applied
appeal is,
trial court. The test to be
making
court abused its
in
trial
discretion
Poehnelt,
the modification.
2d
Poehnelt v.
94 Wis.
(1980).
We trial conclude not its did abuse modifying judgment. discretion in the divorce Under case, finding circumstances of this the factual the court inability self-sup- of Mrs. Fobes’ to become *9 predicate porting, was the which for the limited mainte- provision, change nance constituted substantial granted. circumstances since the time the divorce was It was not an of discretion abuse for the trial court to hearing and order a further to paid. determine amount of maintenance to be By the Court. —The order of the circuit court is af- firmed. disagree
STEINMETZ, (dissenting). J. I with the result reasoning reached majority. and the used appears
It majority disregarding par- is ties’ which was the basis for the considering is that Mrs. Fobes has not become self- supporting and Mr. Fobes had a substantial increase in income granted since the divorce and, therefore, it only equitable is payments the maintenance be con- tinued. reasoning There given is no why permanent be converted to rather than an extension year of a temporary or two of perma- maintenance. If nent entered, maintenance is Mr. Fobes will have to change show a circumstances to have the lessened in amount or to be terminated. It also seems irrelevant to me to consider or even state that Mr. Fobes’ appreciated income has over what it was at the time of stipulation. finding There is no in this record that Mrs. Fobes unemployable. is Regardless, the majority willing is grant permanent her maintenance since she has failed attempts in her self-supportive. to become only She has dedicated her activities employment two areas of choose, which she would social private nursing. work and appear There any does not duty be for her to become self-suрportive in some field other than social work or private nursing yet she has not been found unemployable only but malingerer. not to be a
83 majority “It not an The states: was of discre- abuse tion for the trial to the and court hearing order a further determine to the amount of Page paid.” appears It 82. court maintenance to the would not find an abuse of discretion raise the amount temporary of maintenance and convert it from also permanent. That stipulation would emasculate the parties appear and property it would the distribution should be reexamined. Dixon,
The court
Dixon v.
concludes
Wis.
2d
(1982), applies
In Rintelman, Rintelman v. 2d 118 Wis. of (1984), we held a husband N.W.2d 498 stipulation allegedly agreement his for lifetime because spite remarriage maintenance in his wife’s could not by agreement. have been ordered the court without his Therefore, considering Dixon and Rintelman and the case, only instant maintenance term in a binding that is now is one where the trial court would authority impose not have it after a contested hearing. decision, unfairness that is this the entire reopened
matter is only not and the main- considered but open in Rintelman that we would not tenance. We said bargaining agreement did not know the since we parties. However, in this went on between that important majority ignores aspect case, jRintelman. Rintelman, we stated: “Under the cir In assume that it is reasonable to cumstances approximate bargained equals, final as product give result was a and take on both sides.” “agreement freely Also, 597. we Id. at stated the negotiated. knowingly trial court *11 The examined stipulation incorporated judgment.” entire it into its Id. at 598. judg- opening up аpproves improperly
The court permanent not appropriateness review the ment pay- amount of also the each maintenance and limited up property divi- open also ment. court should original and consider whether settlement sion of considering great an award too award to Mrs. aat now that it of lifetime maintenance and higher judgment. After level than in appreciated property in value all has her share of since 1980 also.
I dissent. I am authorized to state that JUSTICE joins A. this dissent. WILLIAM BABLITCH