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COURT OF APPEALS
NOTICE
DECISION
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.
September 18, 2001
A party may file with the Supreme Court a
                                                                                    Cornelia G. Clark                                                 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.
No.                                                                                 00-2942
                                                                                    STATE OF WISCONSIN                                                IN COURT OF APPEALS
DISTRICT III
IN RE THE MARRIAGE OF:
ELAINE H. SORENSEN,
JOINT-PETITIONER-RESPONDENT-
CROSS-APPELLANT,
V.
PHILIP J. SORENSEN,
JOINT-PETITIONER-APPELLANT-
CROSS-RESPONDENT.
APPEAL and CROSS-APPEAL from a judgment of the circuit court
for Ashland County:   EUGENE D. HARRINGTON, Judge.   Affirmed.
Before Hoover, P.J., Peterson and Vergeront, JJ.
¶1                                                                                  PER CURIAM.    Philip Sorensen appeals his divorce judgment and
challenges child support, maintenance, property division and attorney fees.   His




No.   00-2942
former  wife,  Elaine  Sorensen,  cross-appeals,  challenging  maintenance,  the
allocation of debts, and the award of attorney fees.   We affirm the judgment.
BACKGROUND
¶2                                                                                         The parties were married in 1981 and have two children, who were
ages seven and three and one-half at the time of the divorce hearing.   Philip, an
attorney,  is  a  solo  practitioner.  Elaine,  who  previously  worked  at  his  office
performing  secretarial  and  bookkeeping  tasks,  now  stays  at  home  with  their
children.
¶3                                                                                         Elaine testified that she dropped out of college to move to Wisconsin
and marry Philip.    When they were first married, she worked in retail to help
support  their  household  while  Philip  attended  law  school.1   When  Philip
graduated, they moved to Duluth where Philip obtained employment at the city
attorney’s office.   He earned approximately $40,000 per year.   Elaine continued
working in retail and as a seamstress in Duluth, making about $6 per hour.
¶4                                                                                         In 1988, Philip left the city attorney’s office.   Elaine testified that
Philip wanted to become a small town practitioner and live near his family.   Philip
opened an office in Ashland and the parties moved to the town of Highbridge,
approximately twenty miles away.   Elaine immediately began working for Philip
as his legal secretary.   Elaine testified:                                                “When we moved to [Highbridge], we
didn’t have any funds to send me to school because we  were putting it into
renovating a dilapidated farm house and furthering Phil’s business.”   Elaine noted
1 Philip’s father paid for law school tuition and fees.
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No.   00-2942
that it took “a good couple of years before [Philip] was making anywhere near
what he made in Duluth ….”
¶5                                                                                         Elaine testified that after their sons were born, in 1993 and 1996, the
parties agreed that Elaine would stay home to care for the children and, once they
were  in  school,  she  would  complete  her  education.    Elaine  testified  that  she
continued to help Philip at the law office and attended some classes until the
parties separated.
¶6                                                                                         Philip testified that he has a general practice:                           “I’d say 25 percent is
criminal and the rest is general stuff, real estate, wills … probate ….”   His hourly
rate varies from $80 to $95 per hour.   Approximately one-third of his practice is
court-appointed and legal aid, for which he receives between  $40 and  $60 per
hour.   He generally works fifty hours a week.
¶7                                                                                         Elaine stated that it was advantageous from a tax standpoint for
Philip to deduct her income as a payroll expense.   In 1999, Elaine reported income
of $5,400 from the office and Philip reported $37,200.   Elaine testified that now
that she no longer works at the office, her income is available to Philip.   Although
Philip claimed that he had to hire additional help to assist him, Elaine disputed
that, stating:                                                                             “As far as I can tell, his secretary is not working any extra days.”
Elaine  testified  further  that  the  bookkeeping  tasks  she  performed  could  be
accomplished by Philip:   “He could do them himself.   He did them before.”
¶8                                                                                         Philip’s  income  fluctuates,  but  he  claimed  that  his  average  was
$33,070 annually.   He testified that because Elaine no longer works at his office,
he needed to pay his secretary more to perform the tasks Elaine previously did.
During the first six months of 2000, however, Philip earned income of $25,800.
When asked why his income was higher in 2000 than in previous years, Philip
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No.   00-2942
responded:   “I know I’m working harder and longer; but also, you know, hopefully
my clientele bas[e] is building.   I don’t know, it’s been good.   It doesn’t mean it’s
going to continue, but it’s been good.   I’m exhausted.”
¶9    Philip testified that neither party brought any assets of value to the
marriage.   He agreed that it would be best for the children to award possession of
the home to Elaine.    The parties stipulated that the house was worth  $80,000,
subject to a $12,000 home equity loan.   Philip believed that including the accounts
receivable, the value of his law firm’s assets were approximately  $12,000. In
addition, Philip’s ten percent interest in the building that housed his firm was
worth $4,500.
¶10    The trial court found that Philip earned $42,500 per year.   The court
ordered that Philip pay $885 per month in child support.   The court further ordered
that he pay Elaine $832.50 per month maintenance.   As for property division, the
court ordered that the residence be owned as tenants in common and that Elaine
remain in possession as the custodial parent.   The court ordered that each party
shall be liable for one-half of the home equity loan, real estate taxes, insurance,
and repairs.   It required Elaine to be responsible for utilities.
¶11    With the exception of household goods and furnishings, the court
attempted to effectuate an equal property division. The court ordered that each
party should retain the goods in his or her possession, noting that Elaine would
retain more items to provide a furnished home for the children.   The court divided
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No.   00-2942
other property, including individual retirement accounts, securities, and real estate
equally.2
¶12    The court valued the law practice at $15,776.03.   It awarded Philip
the assets of his law practice, including his interest in the partnership that owned
the building, but determined that Elaine was entitled to an equalizing payment of
2
The court ordered the following property division.
Elaine
Personal property in her possession and van
IRA valued at $47,000
One Madeline Island Lot $5,000
One-half of jointly held securities
Cash payment of $7,888
One-half of the 1999 income tax refund $1,463
One-half of the custodial accounts (held for the children)
Philip
Personal property in his possession and truck
His $47,000 IRA
One $5,000 Madeline Island lot
One-half of jointly held securities
Law office assets
Cash value of life insurance policy at $480.52
One-half of the 1999 income tax refund $1,463.
One-half of the custodial accounts (held for the children)
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No.   00-2942
$7,888.01.   In addition, the court required Philip to pay a $1,463 contribution to
Elaine’s attorney fees.
STANDARD OF REVIEW
¶13    The  determination  of  maintenance,  child  support  and  property
division requires the exercise of discretion.   See Evenson v. Evenson, 228 Wis. 2d
676,  687,  598 N.W.2d  232  (Ct. App.  1999); see also Sharon v. Sharon,  178
Wis. 2d 481, 488, 504 N.W.2d 415 (Ct. App. 1993).   Discretion is the reasoned
application of the proper principles of law to the facts that are properly found.
Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981).
¶14    It  is  well  established  that  a  trial  court,  in  the  exercise  of  its
discretion,  may  reasonably  reach  a  conclusion  that  another  court  would  not.
Liddle v. Liddle, 140 Wis. 2d 132, 156, 410 N.W.2d 196 (Ct. App. 1987).    We are
to look to the record for reasons to sustain a trial court's discretionary decision.
See Brandt v. Witzling, 98 Wis. 2d 613, 619, 297 N.W.2d 833 (1980).
¶15    We apply the “clearly erroneous” standard to the factual basis for the
court’s determination.   WIS. STAT. § 805.17(2).3   The trial court, not the appellate
court, judges the credibility of witnesses and the weight of their testimony.   Id.
Appellate courts search the record for evidence to support findings reached by the
trial court, not for evidence to support findings the trial court did not but could
have reached.   Estate of Dejmal, 95 Wis. 2d 141, 154, 289 N.W.2d 813 (1980).
Appellate court deference considers that the trial court has the opportunity to
3 All statutory references are to the 1999-2000 version unless otherwise noted.
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No.   00-2942
observe  the  demeanor  of  witnesses  and  gauge  the  persuasiveness  of  their
testimony.    Id. at 151-52.
DISCUSSION
1.  Child Support
¶16    Philip argues that the trial court miscalculated his earnings in order
to determine child support.   We are unpersuaded.   The trial court is required to
calculate the appropriate award of child support by applying the WIS. ADMIN.
CODE § DWD 40 percentage standards to the payor’s gross income.   See Evenson,
228 Wis. 2d at 691; see also WIS. STAT. § 767.25(1) and (1n)(b).4   Section DWD
40.02(14)  defines  gross  income  as                                                             “(a)  All  income  considered  federal  gross
income  under  26  CFR  [§] 1.61-1”  plus  additional  sources  not  relevant  here.
Section  DWD                                                                                      40.02(13)                                            (a)  defines  gross  income  to  include   “[a]ll  income
considered federal gross income under  26 CFR  [§] 1.61-1.”    Gross income as
defined in  26 C.F.R.  § 1.61-1  (West  1997), means  “all income from whatever
source derived, unless excluded by law.” 5
¶17    Here, Philip’s testimony supports the court’s finding that he earned
$25,800 for the first six months of the year 2000.   The court noted the “vagaries”
of small town general practice and declined to extrapolate an annual income of
$50,000.   Instead, the court took into consideration past years, when Philip earned
4 WISCONSIN STAT. § 767.25, “Child support,” provides in part:   “(1j) Except as provided
in sub. (1m), the court shall determine child support payments by using the percentage standard
established by the department under s. 49.22 (9).”
5                                                                                                 26 CFR § 1.61-1 (West 1997), defines gross income:   “General Definition.   Gross
income means all income from whatever source derived, unless excluded by law.   Gross income
includes income realized in any form, whether money, property, or services ….”
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No.   00-2942
less.    For  example,  in                                                                          1999,  Philip  earned  $37,200  and,  in  1998,  he  earned
$39,550.   Nonetheless, the court found a general trend toward increased earnings.
The record supports this finding, disclosing Philip’s $23,350 income in 1996 and
$32,450 in 1997.   We conclude that the court’s finding of $42,500 is a reasonable
figure, reflecting Philip’s current work habits and his business trend.6
¶18    Philip argues that the court erred because it failed to employ his five-
year average between 1995 and 1999 of $33,070.   We disagree.   There is no hard
and  fast  rule  of  calculation.    Here,  the  court  took  into  consideration  various
appropriate factors.   The court’s finding is not clearly erroneous.
¶19    Philip  next  argues  that  the  court  erroneously  imputed  Elaine’s
previous annual salary to him in order to reach $42,500.7   We are unpersuaded.
The record provides ample support for the court’s finding, independent of any
salary that Elaine may have earned previously.   Based upon Philip’s year 2000
earnings to date, as well as the trend toward increased earnings, an annual income
of $42,500 is not clearly erroneous.   Because an independent basis supports the
finding, Philip’s contention does not provide grounds for reversal.
2.  Maintenance
¶20    Next,  Philip  argues  that  the  trial  court  erroneously  awarded
excessive maintenance.   We disagree.   In awarding maintenance, the trial court
6 The court noted:                                                                                  “My observation is that 50 hours per week is probably pretty much
normal for the country lawyer, the sole practitioner in northwest Wisconsin, as is the feeling of
exhaustion, perhaps.”
7 Philip contends that the court added Elaine’s previous annual earnings of $5,000 as his
legal secretary to his 1999 income of $37,200.
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No.   00-2942
must consider the factors in § 767.26, STATS.8   On review, the question is whether
the trial court's application of the factors achieves both the support and fairness
8
WISCONSIN STAT. § 767.26 provides:
Upon every judgment of annulment, divorce or legal separation,
or in rendering a judgment in an action under s. 767.02 (1) (g) or
(j), the court may grant an order requiring maintenance payments
to either party for a limited or indefinite length of time after
considering:
(1) The length of the marriage.
(2) The age and physical and emotional health of the parties.
(3) The division of property made under s. 767.255.
(4) The educational level of each party at the time of marriage
and at the time the action is commenced.
(5) The earning capacity of the party seeking maintenance,
including educational background, training, employment skills,
work  experience,  length  of  absence  from  the  job  market,
custodial responsibilities for children and the time and expense
necessary to acquire sufficient education or training to enable the
party to find appropriate employment.
(6)  The feasibility that the party seeking maintenance can
become  self-supporting  at  a  standard  of  living  reasonably
comparable to that enjoyed during the marriage, and, if so, the
length of time necessary to achieve this goal.
(7) The tax consequences to each party.
(8)  Any mutual  agreement  made  by the  parties  before  or
during the marriage, according to the terms of which one party
has made financial or service contributions to the other with the
expectation of reciprocation or other compensation in the future,
where  such  repayment  has  not  been  made,  or  any  mutual
agreement made by the parties before or during the marriage
concerning any arrangement for the financial  support of the
parties.
(9) The contribution by one party to the education, training or
increased earning power of the other.
(10) Such other factors as the court may in each individual
case determine to be relevant.
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No.   00-2942
objectives of maintenance.    Forester v. Forester,  174 Wis. 2d  78,  84-85,  496
N.W.2d 771 (Ct. App. 1993).   The support objective is to support the recipient
spouse in accordance with the needs and earning capacities of the parties.                 “The
goal of the support objective … is to provide the recipient spouse with support at
pre-divorce standards.”   Fowler v. Fowler, 158 Wis. 2d 508, 520, 463 N.W.2d 370
(Ct. App. 1990).   In a long-term marriage, “it is reasonable to begin maintenance
evaluation with [the] proposition that [the] dependent partner may be entitled to
fifty percent of the parties’ total earnings.”   Id. at 520-21.
¶21    The fairness objective  is to ensure a fair and equitable financial
arrangement  between  the  parties  in  each  individual  case.  King  v.  King,           224
Wis. 2d 235, 249, 590 N.W.2d 480 (1999).   Over a long marriage, parties each
contribute  to  the  income  stream  as  marital  partners  and  should  share  in  the
rewards.   Fowler,  158 Wis. 2d at  519.                                                   “Sharing the rewards of the stream of
income produced in a long marriage is encompassed in the fairness objective of
maintenance.”   Id.   A trial court misuses its discretion if it fails to fully consider
the dual objectives of maintenance.   Forester, 174 Wis. 2d at 86.
¶22    To determine the amount of maintenance, the court subtracted the
annual amount of child support, $10,625, from Philip’s income of $42,500.   Next,
it  subtracted  what  it  determined  to  be  state  and  federal  income  taxes  of
approximately  28% to arrive at the sum of  $19,975 available to support both
parties. Relying on LaRocque, the court divided that sum in half to reach an
annual maintenance award of $9,987.50 or $832.50 per month.   See LaRocque v.
LaRocque, 139 Wis. 2d 23, 38-41, 406 N.W.2d 736 (1987).
¶23    We conclude that the record reflects a rational basis for the court’s
decision.    The  nineteen-year  marriage  was  long  term,  and  both  parties  made
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No.   00-2942
substantial  contributions  to  Philip’s  increased  earnings.  See  WIS.  STAT.
§ 767.26(1) and (9).   The court was entitled to believe Elaine’s testimony that the
parties agreed she should subordinate her education and employment to assisting
Philip  at  his  office  and  caring  for  the  home  and  family.  See  WIS.  STAT.
§ 767.26(5).  Because of the children’s ages, Elaine is currently not employed
outside the home and has no income other than what Philip provides.   See id.
Under  LaRocque,  the  court  could  reasonably  find  that  no  factor  justified  a
departure from an equal division of Philip’s income after taxes and child support.
¶24    Philip argues that the court failed to give sufficient weight to his
expenses.   We disagree.   The court indicated that the available funds were less
than necessary to sufficiently support two separate households:
The court recognizes that there is a short fall when you
look at [Philip’s] financial disclosure statement.   His    short
fall is between his net income left over on a monthly basis
is about 832 dollars and his net expenses are about 1200
dollars.   When I also compare [Elaine’s] child support plus
her maintenance, there is a short fall between what she has
in expenses of about 2100 dollars to the 16 or 1700 dollars
that   she’s   going   to   receive   in   child   support   and
maintenance of that similar 4 to 500 dollar range.   The pain
imposed is approximately equal as well.
¶25    The  court  observed   that  each  party  would  have  to   make
approximately  equal  adjustments  to  their  standards  of  living  or  employment
choices to accommodate the financial circumstances engendered by the divorce.
Because  Philip  identifies  no  mistake  of  fact  or  error  of  law,  and  the  court’s
observations  reveal  a  rational  approach  to  the  issue,  we  do  not  overturn  its
determination.
¶26    Philip further claims that the court violated principles of fairness
because it provided Elaine with child support and maintenance equaling two-thirds
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No.   00-2942
of  his  income,  while  he  is  forced  to  survive  on  only  one-third.  We  are
unpersuaded.  Elaine’s  household  consists  of  three  individuals  while  Philip’s
consists of one.   Because Elaine has primary custody of the children, we are not
convinced  that  the  combination  of  child  support  and  maintenance  equals  an
excessive award.
¶27    Philip   also   challenges   the   court’s   award   of   the   indefinite
maintenance term.   He argues that Elaine has significant employment skills as a
legal secretary and that she should be capable of supporting herself when the
youngest child starts kindergarten in two years.
¶28    We acknowledge that maintenance is not a permanent annuity but is
designed to maintain a party at a standard of living until the party exercising
reasonable  diligence  has reached  a  level of  income  where  maintenance  is  no
longer necessary.   Vander Perren v. Vander Perren, 105 Wis. 2d 219, 230, 313
N.W.2d  813  (1982).   Nonetheless,  we  are  satisfied  that  the  record  provides  a
rational basis for the indefinite maintenance term.
In determining whether to grant limited-term maintenance,
the  circuit  court  must  take  several  considerations  into
account, for example, the ability of the recipient spouse to
become  self-supporting  by  the  end  of  the  maintenance
period at a standard of living reasonably similar to that
enjoyed before divorce; the ability of the payor spouse to
continue the obligation of support for an indefinite time;
and the need for the court to continue jurisdiction regarding
maintenance.
Because limited-term maintenance is relatively inflexible
and final, the circuit court must take particular care to be
realistic   about   the   recipient   spouse's   future   earning
capacity.
LaRocque, 139 Wis. 2d at 41.
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No.   00-2942
¶29    The record shows that Elaine is forty-one years old and is in good
health.   She has had work experience as a seamstress and in retail, earning $6 per
hour, and as a secretary for her husband, earning $12 per hour.   Due to Elaine’s
custodial responsibilities for the children and the lack of jobs in the immediate
area, however, the trial court could find it would be unrealistic for Elaine to join
the job market in the near future.9   Once the children are in school full time, the
record indicates that her earnings as a secretary would lag behind Philip’s as an
attorney.
¶30    As a result, the trial court could reasonably conclude that Elaine’s
earnings would be insufficient to provide her with adequate support.   In the event
Elaine  would  secure  employment when  the  children  mature,  the  court retains
jurisdiction  to  modify  maintenance  based  upon  a  substantial  change  in  her
financial circumstances.   See WIS. STAT. § 767.32.   Because the record reflects a
rational basis for the maintenance award, Philip fails to establish an erroneous
exercise of discretion.
3.   Property Division
a.  Residence
¶31    Next, Philip argues that the court erroneously exercised its discretion
when it awarded each of the parties one-half interest in the home, to be held as
tenants in common.    The court awarded Elaine possession of  the house until
9 The court stated:                                                                                     “If [Elaine] is pretty adept at law office management and the probate
practice, she has certain marketable skills, although there isn’t any evidence for a need, whether it
be in Highbridge, Wisconsin, Ashland, Wisconsin, or Mellen, Wisconsin, which is the reasonable
locale within which she’s looking for work.”
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No.   00-2942
(1) Elaine remarries, (2) Elaine moves out, or (3) the youngest child reaches age
eighteen.   Then the house is to be appraised and either purchased by one of the
parties or sold to a third party and the sale proceeds to be divided equally.   Philip
contends that it is error to tie up his equity in the house for potentially fifteen years
and that the court compounded its error by ordering him to pay one-half the
mortgage, taxes and insurance.
¶32    The court’s award of the possession of the home to Elaine as the
children’s primary custodian is not erroneous.   At trial, Philip testified that it was
best for the children to remain living in their own home.   Philip did not qualify his
testimony by putting any time limits on it.   We are satisfied that Philip’s testimony
provides a rational basis for the court’s ruling awarding Elaine possession of the
house  while  she  is  living  in  it  as  the  custodial  parent.  See  WIS.  STAT.
§ 767.255(3)(h).10
¶33    With the exception of a $12,000 home equity loan used to purchase
Elaine’s van, there is no outstanding indebtedness secured by the home.   The court
ordered that the home equity loan be shared equally:                                                “The parties are jointly and
severally liable for the payment of the home equity mortgage.   Whether it used for
the purchase of the car or not, it’s a marital debt.   The only equitable way to divide
that debt is to make each one half responsible for it.”
¶34    The record reveals a rational basis to support the court’s order.   The
court was entitled to find that the home equity loan was a  marital debt and,
10 WISCONSIN  STAT.  § 767.255(3)(h) provides that the court may alter the presumed
equal  property  division  after  considering  various  factors,  including:                        “The  desirability  of
awarding the family home or the right to live therein for a reasonable period to the party having
physical placement for the greater period of time.”
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No.   00-2942
consistent with its equal property division, it should be shared equally.    Also,
because Philip owns one-half interest in the home as a tenant in common, he
should be liable for one-half of the real estate taxes and insurance in order to
preserve his share of the asset.   When the homestead is sold, Philip will receive
one-half of any appreciation in its value.   Fairness dictates that he contribute one-
half  of  the  basic  expenses  of  the  homestead.    Because  the  record  reveals  a
reasonable basis for the court’s order, we do not overturn its decision.
b.  Law Practice
¶35    Next, Philip argues that the trial court erroneously valued his law
practice.   He complains that the court failed to consider the firm’s debts of $7,000.
We conclude that the record supports the trial court’s finding of fact.    Philip
testified that the value of his interest in the building that housed his office was
$4,500.   Also, the record discloses the following testimony:
THE COURT:   What do you think the value of the assets in
your  law  practice  are;  accounts  receivable,  furniture,
fixtures, computers, whatever is there.   What’s it all worth,
gross?
[PHILIP]:   11,276.03,   if   you   include   the   accounts
receivable.
THE COURT:   Cash?
[PHILIP]:   Cash on hand right now, 800 dollars.
THE COURT:   Is  that  included  in  the                                                  11,000  dollar
number?
[PHILIP]:   No, no.
THE COURT:   So  roughly  your  estimate  today  is  assets
totaling 12,000 dollars.   What debts are there against the
law practice?
[PHILIP]:   Well,  there  is  ongoing  overhead  and  that
monthly overhead through the first six months of this year
was 7,000 something.   And then at the time this exhibit was
prepared, I had to pay off a laptop, fax machine, and those
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No.   00-2942
have since been paid off.   And then I’ve had to purchase a
new telephone and a Dictaphone playing machine.
THE COURT:   All right.   Do you have any debts against
the law practice, any outstanding loans that you used, either
personal note with the bank or financial institution?
[PHILIP]:   No.
¶36    On re-direct, Philip was asked if “today there would be at least 7,000
dollars of accounts payable and debt.”   Philip replied:                                “Yeah.   If I dropped that
today, I’d probably have to pay about that much, or somebody will.”
¶37    Philip’s testimony first indicated no indebtedness, and then indicated
$7,000 indebtedness.   The trial court, not this court, resolves inconsistencies and
conflicts in testimony.   See WIS. STAT. § 805.17(2).   Based on Philip’s testimony,
the  court  could  have  determined  that  the                                          $7,000  represented  overhead,  not
indebtedness.   Consequently, the court’s finding that the law practice had a value
of $15,776 is not clearly erroneous.
4.  Attorney Fees
¶38    Finally, Philip argues that the trial court erroneously awarded Elaine
$1,463 contribution to her attorney fees.   The court found that Elaine had a need
for the contribution because she is presently unemployed and, although she is
receiving maintenance, her income falls short of her budgeted expenses.   Also,
because the record demonstrated that Philip was to receive $1,463 as his share of
the parties’ tax refund, the court could reasonably determine that Philip had the
ability to pay this sum.   See WIS. STAT. § 767.262.
¶39    Philip  contends  that  this  award  is  unfair  because  the  court  had
attempted  an  equal  property  division  and,  in  addition,  awarded  Elaine  child
support and maintenance equaling more than two-thirds of his income.   He relies
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No.   00-2942
on Kastelic v. Kastelic, 119 Wis. 2d 280, 350 N.W.2d 714 (1984), for his assertion
that when an equal property division is ordered, each party should pay their own
attorney fees.
¶40    We conclude that Kastelic is factually distinct.   In that 1983 case, for
property division, the wife, Janet, received the homestead, a cash payment of
$80,000 plus a cash payment of $86,521 at 10% interest, payable over five years.
In addition, she was awarded $2,300 per month family support for herself and one
minor child.                                                                              “Janet received a large cash settlement and support to enable her to
remain in the home and attend college.”   Id. at 291.   Because Janet did not show
the requisite need, we concluded that it was not an erroneous exercise of discretion
for the court to deny Janet a contribution to her attorney fees.  Id.   Here, Elaine
demonstrated the requisite need and, accordingly, the court reasonably exercised
its discretion.
CROSS-APPEAL
1.  Compensatory Maintenance
¶41    Elaine  argues  that  she  has  been  socially  and  economically
handicapped by virtue of her marriage to Philip and, therefore, she is entitled to
“enhanced” maintenance.   She argues that the trial court erred when it rejected her
request for maintenance to compensate her for the nineteen years she devoted to
Philip’s  law  practice  and  the  family.    We  reject  her  argument.    The  record
demonstrates that the court considered the length of the marriage, her age and
health, financial need, educational level and job skills, earning capacity, and the
feasibility  that  she  can  become  self-supporting  at  a  standard  reasonably
comparable to that enjoyed during the marriage.   These are proper factors under
WIS. STAT. § 767.26.   The record demonstrates a reasonable exercise of discretion.
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No.   00-2942
2.  Prefiling Debt
¶42    Next, Elaine claims that there were $1,400 in debts existing at the
time of filing the petition for divorce and the court erroneously required each party
to pay half.  She argues that the trial court misapplied the law when it failed to find
that the  parties  were  bound by their  stipulation requiring  Philip  to pay these
prefiling debts.
¶43    Philip  responds  that  the  stipulation  to  which  Elaine  refers  is  a
stipulation  for  a  temporary  order.    Elaine  does  not  refute  Philip’s  response.
Therefore, we accept it as admitted.   See Charolais Breeding Ranches, Ltd. v.
FPC  Secs.  Corp.,                                                                         90  Wis. 2d   97,   109,   279  N.W.2d  493  (Ct.  App.   1979)
(arguments not refuted deemed admitted).   Elaine provides no authority for her
proposition that a stipulation for a temporary order is binding on the court at the
final hearing.   Accordingly, it is rejected.  See State v. Shaffer, 96 Wis. 2d 531,
545-46, 292 N.W.2d 370 (Ct. App. 1980).
3.  Award of Attorney Fees
¶44    Finally, Elaine argues that the trial court erred when it awarded her
an  inadequate  contribution to  her  attorney fees.    She  claims that she  had  no
income, and that the court failed to correctly analyze Philip’s ability to pay.   She
contends that Philip had substantial non-tax deferred securities that could have
been used to pay her $2,600 bill.    We are unpersuaded.
¶45    The court’s analysis took into consideration Philip’s substantial child
support  and  maintenance  obligations.    It  determined  that,  as  with  Elaine,  his
monthly expenses exceeded his remaining income.   Accordingly, it was not an
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No.   00-2942
erroneous exercise of  discretion for the court to limit Philip’s contribution to
$1,463.
By the Court.—Judgment affirmed.   No costs to either party.
                                                                                    This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                           (b)5.
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