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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.
October 10, 2002
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.
                                                                                                                                                  Cir. Ct. No.   00-FA-784
Appeal No.                                                                      02-1062-FT
STATE OF WISCONSIN                                                                                                                                IN COURT OF APPEALS
                                                                                                                                                  DISTRICT IV
IN RE THE MARRIAGE OF:
JANE L. BOLTZ,
PETITIONER-RESPONDENT,
V.
KEITH W. BOLTZ,
RESPONDENT-APPELLANT.
APPEAL from a judgment of the circuit court for Dane County:
DAVID T. FLANAGAN, Judge.   Affirmed.
Before Vergeront, P.J., Deininger and Lundsten, JJ.
¶1                                                                              PER CURIAM.    Keith Boltz appeals a divorce judgment requiring
him to pay his ex-wife Jane $700 per month in maintenance for thirteen years.




No.   02-1062-FT
After reviewing the  parties’ briefs and the  record, we affirm the  trial court’s
decision.
¶2                                                                                          We  first  note  that  maintenance  determinations  lie  within  the
discretion of the trial court.   Sellers v. Sellers, 201 Wis. 2d 578, 585, 549 N.W.2d
481 (Ct. App. 1996).   Therefore, we will uphold a maintenance award so long as it
represents  a  rational  decision  based  on  the  application  of  the  correct  legal
standards to the facts of record.   Id.
¶3                                                                                          WISCONSIN STAT. § 767.26 (1999-2000)1 lists a number of factors
for  a  trial court  to  consider  when determining the  amount and  duration  of  a
maintenance award, including the length of the marriage, the age and health of the
parties, the property division, the parties’ respective educational levels and earning
capacities, the contributions of one party to the education or earning power of the
other, tax consequences, and the standard of living enjoyed during the marriage.
These factors “are designed to further two distinct but related objectives in the
award of maintenance:  to support the recipient spouse in accordance with the
needs and earning capacities of the parties (the support objective) and to ensure a
fair and equitable financial arrangement between the parties in each individual
case (the fairness objective).”   LaRocque v. LaRocque, 139 Wis. 2d 23, 32-33,
406 N.W.2d 736 (1987).
¶4                                                                                          We are satisfied that the trial court considered and applied the proper
statutory factors.   It noted that the parties had been married for approximately
twenty-eight years.    During the marriage, Keith was the primary wage-earner,
1  All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise
noted.
2




No.   02-1062-FT
while Jane was the primary homemaker and caregiver for two children, one of
whom developed epilepsy from a bout with encephalitis.2    The parties moved
several times during the marriage so that Keith could find employment.   Jane also
held several part-time jobs at various times during the marriage.
¶5                                                                                         At the time of the divorce, Keith was fifty-one years old, in good
health, and earning about $40,000 a year as a bus driver.   Jane was fifty years old
and earning about $26,000 working for the Epilepsy Foundation.   The trial court
found  that  Jane  had  a  history of  significant  health  problems,  some  of  which
predated  the  marriage, and that she  was  taking  medications  for  hypertension,
depression and a thyroid condition.
¶6                                                                                         The trial court acknowledged that Keith had chosen to work at jobs
he did not particularly enjoy in order to support the family while Jane enjoyed her
lower-paying job.   It found insufficient evidence, however, to show that Jane had a
higher earning capacity.   It concluded that the length of the marriage, the fact that
Jane had left the workforce to care for the children and had moved frequently due
to Keith’s employment, and Jane’s health problems justified a maintenance award.
¶7                                                                                         Keith  first  argues  that  the  length  of  the  marriage  alone  cannot
compel a maintenance award.   We consider this argument inapposite because it is
clear from the record that the trial court did not base its award solely on the length
of the marriage, but rather took it into account as one factor.   A proper starting
point for a maintenance evaluation following a long-term marriage is to award the
dependent spouse half of the total combined earnings of both parties.   Bahr v.
2  The children were twenty-four and seventeen years old by the time of the divorce, and
custody and child support are not at issue on this appeal.
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No.   02-1062-FT
Bahr, 107 Wis. 2d 72, 84-85, 318 N.W.2d 391 (1982).   We are satisfied that the
trial court properly considered the length of the parties’ marriage to weigh in favor
of a maintenance award.
¶8                                                                                       Keith’s second argument is that there is no evidence that Jane’s
absences  from the  workforce  or  her  willingness  to  relocate  based  on  Keith’s
employment opportunities adversely affected her earning capacity.    He further
asserts that his own frequent job changes show that he had not established a
steadily increasing  stream of  income  at the  expense  of  Jane’s career.    While
Keith’s arguments are not unreasonable, they are not the only way to view the
evidence.   The trial court could reasonably have considered that Jane would have
been able to move farther along in her own career had she been able to stay at one
job throughout the marriage.
¶9                                                                                       Keith next takes issue with the trial court’s characterization of Jane’s
hypertension, depression, and thyroid condition as “significant health concerns.”
He argues that there was no evidence that any of Jane’s health problems had
affected her earning capacity.   It is also true, however, that Jane’s health problems
might reasonably be expected to cause her to incur medical expenses at some point
in the future, and her health history could make obtaining insurance more difficult
and/or expensive and the possibility of future disability more likely.   Again, we
are satisfied that the trial court properly took Jane’s health into account based on
fair inferences from the record.
¶10    Keith contends that the trial court’s award failed to meet the support
objective because it left him with insufficient income to meet his own budget.   He
cites  precedent  stating  that  a  maintenance  award  should  not  result  in
“unreasonable hardship to the supporting party.”   Bisone v. Bisone, 165 Wis. 2d
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No.   02-1062-FT
114, 120, 477 N.W.2d 59 (Ct. App. 1991).   It is equally true, however, that “[a]
court must not reduce the recipient spouse to subsistence level while the payor
spouse preserves the pre-divorce standard of living.”   LaRocque, 139 Wis. 2d at
35.   The simple fact is that “[t]he increased expenses of separate households may
prevent the parties from continuing at their pre-divorce standard of living.”   Id.
Here, it appears that the joint income of the parties was insufficient to meet the
combined budgets of the parties, and that, without maintenance, Jane would fall
shorter of achieving a comparable standard of living.   We are satisfied that the trial
court’s award represented a reasonable attempt to address the support needs of
both parties.
¶11    Keith also argues that it is unfair for Jane to submit a higher budget
than he did when she could choose to live more frugally or to seek higher paying
employment.     We  are  not  persuaded,  however,  that  there  was  anything
unreasonable or unfair about Jane’s decision to keep the marital residence she was
awarded in the property settlement.   The parties had two houses, and each sought
to obtain the larger one.   Some resulting disparity in budgets was inevitable either
way the trial court ruled in the property division.   With regard to the “fairness”
issue, the court found that Keith had reasonably reduced his income by no longer
working overtime, and that there was insufficient evidence to show that Jane could
earn substantially more money.   The fact that Jane liked her job more than Keith
liked his does not alter the earning capacities of the parties.
¶12    Finally, Keith argues that the amount of maintenance awarded was
excessive because it resulted in Jane having approximately $300 per month more
in disposable income than Keith.   Given Jane’s higher housing and health care
costs, however, along with the other factors cited by the trial court, we see no
misuse of discretion in setting the amount or duration of the award.
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No.   02-1062-FT
By the Court.—Judgment affirmed.
                                   This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                          (b)5.
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