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COURT OF APPEALS
DECISION
NOTICE
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.
June 25, 1998
A party may file with the Supreme Court a
                                                                                      Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                      Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                      of Wisconsin              STATS.
No.                                                                                   97-1687
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
DISTRICT IV
IN RE THE MARRIAGE OF: JACQUELINE I. DENNER,
PETITIONER-APPELLANT,
V.
GAY NORMAN DENNER,
RESPONDENT-RESPONDENT.
APPEAL from a judgment of the circuit court for Grant County:
GEORGE  S.  CURRY,  Judge.    Affirmed  in  part;  reversed  in  part  and  cause
remanded.
Before Eich, C.J., Dykman, P.J., and Roggensack, J.
PER CURIAM.    Jacqueline  Denner  appeals  from  the  judgment
divorcing her from Gay Denner.   Gay stipulated to paying a $5201 contribution to
Jacqueline’s  attorney’s  fees  and  assumed  without  consideration  approximately
$5000 of marital debt, and the trial court ordered him to pay maintenance as well.




No. 97-1687
Jacqueline contends that the trial court improperly allowed Gay to pay the attorney
fee  contribution  in  installments,  without  interest  on  the  balance.    She  also
challenges the amount and duration of the maintenance award.   We reverse and
remand for reconsideration on the issue of interest and on the duration of the
maintenance.   We otherwise affirm the judgment.
Jacqueline and Gay were married nearly twenty-seven years.   At the
time of divorce, she was forty-seven, he was forty-six, and both were in good
health.   Both worked full time, with Jacqueline earning approximately $20,000 per
year, without pension or health insurance, and Gay earning $38,000 per year, with
pension and health care coverage.   The parties stipulated to most issues but could
not agree on maintenance.   Gay offered to pay $125 per week for twelve years,
while Jacqueline sought $200 per week for fifteen years, although she agreed to a
substantially reduced payment for the first six months, or until their one minor
child turned eighteen.   The trial court awarded Jacqueline $100 per week for the
first six months, $150 per week for the next five years after that, and $100 per
week for five more years.   The court reasoned:
[T]aking into consideration the fact that he is assuming a
lot more of the attorney’s fees and debt than he normally
would have, I think that I will find that maintenance is to be
awarded at the rate of ... $150.00 per week for the first five
years and reduce that, after five years  .... to                                          $100.00 per
week for another five years...
It seems to me ... that after 10 years, she ought to be
able ... to use that time and that alimony to train herself and
reach  the  same  comparable  standard  of  living  that  she
enjoys at this time.   And that after ten years of receiving
alimony at that rate, those folks ought to be separate from
each other on a permanent basis...
... [After ten years] she should be able to be trained
or find a job that pays her [medical] insurance for her...
... And one of the reasons I am doing that instead of
going to 12 years, is because of the extra amount that he is
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No. 97-1687
going  to  pay  her  [for]  attorney’s  fees  and  the  property
division.
With respect to attorney fees, the court permitted Gay to pay the
attorney  fee  contribution  in                                                         $100  monthly  installments  because  the  property
division left Gay without any substantial liquid assets.   The court decided that
interest should not accrue on the balance, without explaining its rationale.
Jacqueline argues that the court erroneously exercised its discretion
when it did not consider an interest award on the attorney fee contribution.   We
agree.   The decision to allow monthly payments was reasonable.    Gay plainly
lacked ability to pay a substantial lump sum until after the parties sold their house
and he received his share of the equity.   Even then Gay would receive only an
estimated $9000 and the trial court reasonably deemed it unfair to immediately
reduce that by more than half to pay a voluntary obligation far exceeding the $l000
the trial court stated it would have ordered him to contribute.   However, when
ordering installment payments on a property division, the trial court erroneously
exercises its discretion  unless it orders interest on the  balance, or  provides a
reasonable explanation why interest should not be paid.   Corliss v. Corliss, 107
Wis.2d 338, 347, 320 N.W.2d 219, 223 (Ct. App. 1982).   We apply the same rule
to attorney fee payments even though they are not part of the property division.
We therefore remand for the trial court to award interest on the balance of the
attorney fee contribution, or explain why it did not.
Jacqueline also argues that the trial court erred in its maintenance
award to her.   The determination of the amount and duration of maintenance rests
within the sound discretion of the trial court and will not be disturbed absent an
erroneous exercise of that discretion.   LaRocque v. LaRocque, 139 Wis.2d 23, 27,
406 N.W.2d 736, 737 (1987).   An erroneous exercise of discretion occurs when
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No. 97-1687
“the trial court has failed to consider the proper factors, has based the award upon
a factual error, or when the award itself was, under the circumstances, either
excessive or inadequate.”   DeLaMatter v. DeLaMatter, 151 Wis.2d 576, 582-83,
445 N.W.2d 676, 679, (Ct. App. 1989) (citation omitted).   Therefore, the “court’s
decision must ‘be the product of a rational mental process by which the facts of
record and law relied upon are stated and are considered together for the purpose
of  achieving  a  reasoned  and  reasonable  determination.’”     Trieschmann  v.
Trieschmann, 178 Wis.2d 538, 541-42,  504 N.W.2d 433,  434 (Ct. App.  1993)
(quoted source omitted).
The  dual  objectives  of  maintenance  are  support  and  fairness.
LaRocque, 139 Wis.2d at 32-33, 406 N.W.2d at 740.   The support objective is to
maintain  “the  recipient  spouse  in  accordance  with  the  needs  and  the  earning
capacities of the parties.”   Id.   The fairness objective is meant to “ensure a fair and
equitable financial arrangement in each individual case.   Id.   Thus, maintenance is
to be calculated not at “bare subsistence levels,” Forester v. Forester, 174 Wis.2d
78,  89,  496 N.W.2d  771,  775  (Ct. App.  1993), but at a standard of living the
parties enjoyed in the years immediately preceding the divorce.   LaRocque, 139
Wis.2d at 36, 406 N.W.2d at 741.   In determining the amount of maintenance, the
trial court should begin with an equal division of the total earnings of both parties.
Bahr v. Bahr, 107 Wis.2d 72, 85, 318 N.W.2d 391, 398 (1982).
The trial court reasonably exercised its discretion by awarding five
years of maintenance at $150 per week followed by a reduced amount of $100 per
week.   The award leaves Jacqueline with somewhat less than one-half the parties’
gross income despite the long marriage and her equal, if not greater, contribution
to it.   However, in departing from an equal division, the trial court considered
Gay’s  voluntary  contribution  of                                                          $5201  to  Jacqueline’s  attorney  fees  and  his
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No. 97-1687
voluntary assumption of $5000 in marital debt.1   Although the court’s maintenance
analysis in a long marriage begins with an equal division of income, the court may
adjust the award following a reasoned consideration of the statutory factors.  Bahr,
107  Wis.2d  at  85,                                                                          318  N.W.2d  at  398.    Section  767.26(3),  STATS.,  allows
consideration of the property division, and § 767.26(10), allows consideration of
other factors relevant to the individual circumstances, such as Gay’s contribution
to Jacqueline’s attorney fees.   The trial court reasonably set off these voluntary
assumptions of debt against Gay’s maintenance obligation.
The trial court erroneously exercised its discretion, however, in its
justification for reducing the duration of maintenance from twelve years to ten
years, namely, Gay’s voluntary payments, which it had considered and used to
explain  the  maintenance  reduction.    We  deem  it  unreasonable  to  essentially
double-credit Gay for those payments.   Additionally, although the court found that
Jacqueline  could  substantially  increase  her  income  in  ten  years,  there  is  no
evidence in the record to support that finding.   In fact, the evidence tends to show
that Jacqueline had reached her maximum income level, given her education,
training, experience and locality.   We therefore remand for further consideration
on the duration of maintenance.
By the Court.—Judgment affirmed in part; reversed in part and cause
remanded.
1   Jacqueline contends that the $5000 was not a marital debt because Gay incurred it after
they separated.  Facts of record do not support that contention.
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No. 97-1687
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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