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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
January 9, 1997
A party may file with the Supreme Court                                           This opinion is subject to further editing.
a petition to review an adverse decision                                          If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                        appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                               Official Reports.
No.   96-1055
STATE OF WISCONSIN                                                                IN COURT OF APPEALS
                                                                                  DISTRICT IV
IN RE THE MARRIAGE OF:
GARY B. LARSEN,
Petitioner-Respondent,
v.
KAREN S. LARSEN, N/K/A KAREN S. BEHLE,
Respondent-Appellant.
APPEAL   from   an   order   of   the   circuit   court   for   Rock
County:  JAMES E. WELKER, Judge.  Reversed.
Before Dykman, P.J., Vergeront and Roggensack, JJ.
DYKMAN, P.J.     Karen S. Larsen appeals from an order reducing
the amount of limited-term maintenance she was receiving from Gary B. Larsen
from $2,100.00 per month to $1,100.00 per month.  The circuit court reduced the
maintenance because it concluded that Karen failed to make progress toward




No.                                                                                          96-1055
her college degree as required by the parties' stipulation.   Because we conclude
that the undisputed facts do not support this conclusion, we reverse.
BACKGROUND
Gary and Karen were granted a divorce on September 14, 1993.
The  stipulation  of  divorce  provided  that  Gary  pay  Karen  maintenance  of
$2,100.00 per month.  The stipulation further stated:
This  maintenance  obligation  shall  continue  until
March  1,  1998,  subject  to  the  provisions  recited
herein.     Maintenance  will  terminate  if  Karen  S.
Larsen                                                                                       ...  fails  to  continue  progress  toward  her
college   degree   and   certification,   except   for
emergency reasons or temporary periods, which the
parties understand to be if she became ill or disabled
in some way or manner and could not attend college
for  a  semester.     If,  during  the  period  of  this
maintenance obligation, Karen S. Larsen obtains her
degree and certification as currently contemplated, as
long as none of the other conditions recited herein
apply, then the maintenance obligation of Gary B.
Larsen shall be reduced to [$1,100.00] per month ...
On January 9, 1996, Gary brought a motion to reduce or terminate
maintenance on the grounds that Karen had failed to make progress toward her
degree.1   At the motion hearing, Karen testified that she had been attending the
University of Wisconsin-Stout for two years before quitting in 1968 to marry
Gary.   She had accumulated sixty-six credits at that time.   She resumed her
education in 1992, enrolling in the dietetics and food science program at the
1  Gary also moved to modify maintenance on the grounds that Karen was involved in
a de facto marriage with another man and that the financial circumstances of both Gary
and Karen had changed since the divorce.  The circuit court refused to reduce or terminate
maintenance on these grounds, and Gary does not appeal this portion of the circuit court's
decision.
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No.                                                                                 96-1055
University of Wisconsin-Madison.   At the time of her divorce, her anticipated
graduation date was May 1997.
At  the  University  of  Wisconsin-Madison,  Karen  earned  the
following credits:
Fall 1992:                                                                          12 credits earned
Spring 1993:                                                                        12 credits earned
Summer 1993:                                                                        2 credits earned
Fall 1993:                                                                          12 credits earned
Spring 1994:                                                                        9 credits earned
Summer 1994:                                                                        3 credits earned
Fall 1994:                                                                          9 credits earned
Spring 1995:                                                                        0 credits earned
Summer 1995:                                                                        0 credits earned
Fall 1995:                                                                          10 credits earned
Karen  dropped  Organic  Chemistry,  a  three-credit  course,  during  both  the
spring  1994 and fall  1994 semesters and failed this same course during the
spring                                                                              1995  and  summer  1995  sessions.     She  also  dropped  Accounting
Principles, another three-credit course, during the spring 1995 semester.   She
passed both courses during the fall 1995 semester.
In  October  1995,  Karen  received  a  letter  from  the  University
indicating the courses she needed to complete in order to graduate in the spring
or summer of 1997.   The letter indicated that Karen was thirty-six credits short
of graduation.   Karen completed ten of these required credits during the fall
1995 semester.
The circuit court reduced maintenance to  $1,100.00 per month
because Karen had failed to make progress toward her degree.    The court
reasoned:
In this case, the evidence shows that [Karen] has failed to make
[progress  toward  her  college  degree]...                                         She  has
taken light course loads.   Regularly dropped courses
and  failed  other  courses.    She  has  an  academic
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No.                                                                                        96-1055
average of 2.062 on a four-point scale.   There is no
way that she will complete her degree if her progress
in the future is equal to that in her past.2
Karen appeals.   She does not contest the court's findings that she
dropped courses, failed others, and had a grade point average of 2.062 at one
point.  Rather, she argues that these facts do not establish that she failed to make
progress toward her degree.
STANDARD OF REVIEW
A stipulation incorporated into a divorce judgment is in the nature
of a contract.  Kastelic v. Kastelic, 119 Wis.2d 280, 287, 350 N.W.2d 714, 718 (Ct.
App. 1984).   The construction of a written contract presents a question of law,
which we review de novo.    Ondrasek v. Tenneson,  158 Wis.2d  690,  694,  462
2  Although the stipulation provided that maintenance would terminate if Karen failed
to continue progress toward her college degree, the court did not terminate maintenance,
but instead reduced it to $1,000.00 per month.  The court reasoned:
The agreement incorporated in the judgment also provided that, if
[Karen] obtains her degree or certification, the maintenance
is to be reduced to  $1,100 per month.    It is difficult to
ascertain  the  intent  of  the  parties  in  agreeing  to  that
provision  and  further  providing  for  a  termination  of
maintenance if  [Karen] is not making progress toward a
degree.     It  is  impossible  to  believe  that  the  parties
contemplated  that                                                                         [Karen]  would  have  need  for  some
further  limited  term  maintenance  if  she  completed  her
degree but would have no need for such maintenance if she
abandoned that effort or didn't pursue it diligently.
It is necessary for this court to reconcile those two provisions.   It is
the conclusion of the court that her failure diligently to
pursue and make progress toward a degree should not put
her in a worse position than if she completed such a degree.
Therefore, the court will order that maintenance continue at
the same rate as would be in effect if she had completed her
degree.
Neither party takes issue with this determination.
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No.                                                                                            96-1055
N.W.2d 915, 917 (Ct. App. 1990).   Whether a contract is ambiguous is also a
question of law that we decide independently of the circuit court's decision.  See
Jacobson v. Jacobson, 177 Wis.2d 539, 547, 502 N.W.2d 869, 873 (Ct. App. 1993).3
DISCUSSION
The disposition of this appeal turns on the definition of "progress
toward  her  college  degree."    When  the  terms  of  a  contract  are  plain  and
unambiguous, we will construe the contract as it stands.  Borchardt v. Wilk, 156
Wis.2d 420, 427, 456 N.W.2d 653, 656 (Ct. App. 1990).   Contractual language is
ambiguous  when  it  is  "reasonably  or  fairly  susceptible  of  more  than  one
construction."   Id.   We give words in a contract their common and ordinary
meaning.  State ex rel. Siciliano v. Johnson, 21 Wis.2d 482, 487, 124 N.W.2d 624,
627 (1963).
We may look to a dictionary for the ordinary and plain meaning of
a word.  Frank v. Wisconsin Mut. Ins. Co., 198 Wis.2d 689, 695, 543 N.W.2d 535,
537 (Ct. App. 1995).   We see no reason why the parties would have intended to
give the word "progress" a meaning other than the ordinary definition found in
a dictionary.   Therefore, we turn to a dictionary to determine the parties' intent
in using the word "progress."
3  In their briefs, the parties argue that the circuit court's determination that Karen had
failed to make progress toward her degree was a discretionary decision.   We disagree.
The parties confuse the court's modification of maintenance here with a modification of
maintenance ordered pursuant to § 767.32, STATS.  Section 767.32 allows the circuit court to
modify maintenance when it concludes that there has been a substantial change in
circumstances.   Modification of maintenance under § 767.32 is within the discretion of the
trial court.  Moore v. Moore, 89 Wis.2d 665, 669-70, 278 N.W.2d 881, 883 (1979).
In reducing Karen's maintenance, the circuit court did not determine that there was
a substantial change in circumstances.   Therefore, we do not review the circuit court's
decision under the erroneous exercise of discretion standard.   Rather, the circuit court
interpreted the parties' stipulation of divorce in determining that Karen had failed to make
progress toward her degree.   Because the court's decision turned on its interpretation of a
stipulation, we review its determination de novo.   See Duhame v. Duhame, 154 Wis.2d 258,
262, 453 N.W.2d 149, 150 (Ct. App. 1989).
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No.                                                                                 96-1055
WEBSTER'S  THIRD  NEW  INTERNATIONAL  DICTIONARY  1813  (1993)
defines "progress" as "an advance or movement to an objective or toward a
goal."   This definition is unambiguous.   It does not require a minimum rate of
advancement or movement or a diligent effort toward achieving a goal.    It
simply requires an advance or movement toward a goal or objective.
Using the ordinary and plain meaning of word "progress," we
conclude that Karen continues to make progress toward her college degree.
Karen testified that at the time of her divorce, her anticipated graduation date
was May 1997.   The October letter from the university indicates that she is on
course to graduate in the spring or summer of 1997.   Karen continues to take
courses that are required for her degree and has also attended summer school.
Therefore, she continues to advance toward her goal of attaining a college
degree.
We realize that Karen did not earn any credits during either the
spring 1995 or summer 1995 session.  But during both sessions, she was enrolled
in Organic Chemistry, a course required for her degree.   Although she dropped
the course in the spring and fall of 1994 and failed the course in the spring and
summer of 1995, she eventually passed the course in the fall of 1995.   She also
dropped Accounting Principles, another required course, in the spring of 1995,
but passed this course in the fall of 1995 as well.
The stipulation does not require that Karen establish a minimum
level of proficiency in organic chemistry and accounting to continue receiving
$2,100.00 per month in maintenance.   It requires only that she continue to make
progress toward her degree.   Although her difficulties in these courses slowed
her progress,  she  continued  to  make progress toward  her degree  and  her
anticipated graduation date has not changed.
The  stipulation  also  does  not  require  that  Karen  maintain  a
minimum grade point average, and no testimony was offered to establish that
Karen  must  achieve  a  minimum  grade  point  average  to  earn  a  degree  in
dietetics.    Therefore, the circuit court's observation that Karen's grade point
average was 2.062 is irrelevant.
Gary argues that many of the courses Karen enrolled in after their
divorce were not aimed at obtaining a degree in dietetics and that this "was not
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No.                                                                                    96-1055
the type of conduct contemplated by the parties when they entered into the
agreement  to  divorce  in  this  matter."    Gary  argues  that  the  "trial  court
determined, and properly so, that it was the contemplation of the parties that
[Karen] work diligently toward completion of her degree."    He concludes:
"What the trial court did in reality was to determine that [Karen] should have
graduated with her degree by the time of the motion hearing."
But when a contract is plain and unambiguous, we will construe it
as it stands without looking to extrinsic evidence to determine the intent of the
parties.   See Eden Stone Co. v. Oakfield Stone Co., 166 Wis.2d 105, 115, 479
N.W.2d 557, 562 (Ct. App. 1991).   We have already determined that the word
"progress" as used by the parties is plain and unambiguous.   If the parties had
intended that Karen "work diligently toward completion of her degree" to
receive $2,100.00 per month maintenance, they would have said so.   Had Gary
intended that Karen earn her degree at a faster pace, he should have negotiated
a more specific stipulation.
The stipulation does not provide that Karen must take a minimum
class load.   The stipulation does not provide that Karen must graduate by a
certain date.    Instead, the stipulation provides only that Karen must make
progress toward completion of her degree.   She has done so, though not as fast
as Gary would prefer.  We therefore reverse the circuit court's order.
By the Court.—Order reversed.
Not recommended for publication in the official reports.
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