Deborah Schwartz Kravit v. William Murray Kravit

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.
July 25, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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.

Appeal No. 2021AP993 Cir. Ct. No. 2007FA6117

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE MARRIAGE OF:

DEBORAH SCHWARTZ KRAVIT,

PETITIONER-RESPONDENT,

V.

WILLIAM MURRAY KRAVIT,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
CAROLINA STARK, Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and Dugan, J.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP993

¶1 PER CURIAM. William Murray Kravit (William) appeals an order
of the circuit court denying his post-judgment motion to terminate or revise the
prior maintenance order in this divorce action. He argues that in rendering its
decision the circuit court declined to consider as relevant to the statutory factors:
(1) “evidence that showed the full financial picture of the parties in the years
immediately leading up to the divorce or the lifestyle they lived during that time”;
(2) “evidence related to the lifestyle [Deborah Schwartz Kravit (Deborah)] could
have reasonably anticipated enjoying if she had remained married to [William]”;
(3) Deborah’s “current budget, actual reasonable budget or the full financial
pictures of the parties following the divorce and at the time of the evidentiary
hearing”; and (4) “[t]he court declined to do the traditional comparison of the
financial circumstances, budgets, and needs at the time of divorce and at the time
of the modification hearing and how those financial circumstances may have
changed and whether [Deborah] could now be self-supporting.”

¶2 We disagree, and we conclude that the circuit court reasonably
exercised its discretion in rendering its decision modifying the maintenance order.
Accordingly, we affirm.

BACKGROUND

¶3 Deborah and William were married on July 4, 1976, and Deborah
filed a petition for divorce on October 10, 2007. On October 26, 2009, the circuit
court, the Honorable Francis Wasielewski presiding, orally granted a Judgment of
Divorce, which adopted and incorporated as a part of the judgment the parties’

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Marital Settlement Agreement (MSA).1 The approved MSA resolved all the
divorce issues, and the trial court did not conduct a trial or hear any evidence on
any of the divorce issues, including the maintenance from William to Deborah.
During the divorce both parties were represented by counsel, both parties retained
certified public accountants to assist them in negotiating the MSA, and the divorce
was uncontested.

¶4 Regarding the issue of maintenance paid by William to Deborah, the
relevant portion of the MSA and judgment of divorce states:

B. William shall pay Deborah maintenance according
to the following formula:

(a) William shall pay Deborah a base maintenance
amount of $7,000 per month beginning January 1,
2010.

(b) William shall pay Deborah 16.5% of annual gross
commission revenues that exceed $1,667,000 as
maintenance from gross revenues to a maximum of
$280,000 of maintenance per year from all his
insurance related business interests including but not
limited to the following:

1. FHK

3. KHC

4. Senior Benefit Service, Inc.[2]

….

1
The court subsequently issued written Findings of Fact, Conclusions of Law, and
Judgment of Divorce on December 3, 2009. We refer to Judge Wasielewski as the trial court and
the Honorable Carolina Stark who presided over the motion to modify maintenance as the circuit
court.
2
At the hearing on the motion regarding maintenance, the circuit court found that
William no longer owned or operated KHC or Senior Benefit Service, Inc.

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E. The payments shall continue until further order of
the court or either party’s death or Deborah’s remarriage.

Thus, Deborah was to receive maintenance between $84,000 and $280,000 per
year under the MSA. In the years since the divorce, William’s maintenance
payments never fell below the $280,000 cap. Deborah mostly lived off her
maintenance payments during that time.

¶5 On March 11, 2019, William filed a motion to modify maintenance,
alleging that Deborah’s financial situation had dramatically improved since the
original divorce judgment and that maintenance was no longer needed or
warranted under the law. In part, he asserted that Deborah had inherited a
substantial sum of money from her parents. He further maintained that, in 2005,
Deborah’s parents created separate trusts for Deborah and her sister, Susan, that
are governed under Florida law.3 Deborah and Susan are co-trustee’s of
Deborah’s trust (the trust), and Deborah and William’s children are the remainder
beneficiaries of the trust—they have no right to any benefits from the trust while
Deborah is alive.

¶6 In relevant part, Section 5.06 of the trust provides that:

a. During the life of such child, the independent Trustee
may distribute to or for the benefit of such child, so
much of the net income of the trust as the independent
Trustee, in its sole and absolute discretion, shall deem
appropriate.

b. During the life of such child, upon the written request
of such child, the Trustee shall pay to such child, or use
on such child’s behalf, so much of the principal of this

3
We note that the circuit court erroneously stated in its findings of fact that both
Deborah and Susan were beneficiaries of the same trust. In fact, Deborah and Susan are sole
beneficiaries of separate trusts which contain the same language.

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trust as such child from time to time may request in
writing; provided, however, that such withdrawals shall
not exceed in the aggregate in any calendar year an
amount equal to five (5) percent of the value of the
principal of this trust, valued at the end of the calendar
year. The Trustee shall pay this sum no later than thirty
(30) days after the end of the calendar year within
which the request is made.

c. During the life of such child, the Trustee shall pay to or
for the benefit of such child, upon such child’s written
demand, or, alternatively, the independent Trustee pay
to or for the benefit of such child, in its sole and
absolute discretion, so much of the principal of this
trust as may be necessary for such child’s maintenance,
support and health.

The parties disputed what rights Deborah has to request sums from the trust
without Susan’s approval and what sums Deborah can request which Susan would
have the discretion to grant or deny.

¶7 On March 15 and 16, 2021, the circuit court held a hearing on the
motion to modify maintenance. William, Deborah, William’s CPA, and attorney
Philip Halley4 testified. The circuit court concluded that a substantial change in
circumstances occurred—that change was that in 2012 Deborah became the
beneficiary of the trust created by her parents. It found that as of January 31,
2021, the trust had a value of $1,000,786.35. It also found that the terms of the
trust prohibited Deborah from making decisions about her own demands for
disbursements from the trust.

¶8 Regarding disbursements to Deborah under the terms of the trust, the
circuit court found that “Deborah has a right, she is entitled, to receive on an
annual basis five percent of the value of the trust. She simply has to request this.

4
Deborah called Halley as an expert regarding the terms of the trust.

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… [I]t does not require the approval of any trustee.” The court then found that in
addition to the 5%, Deborah could “demand or request that additional principal
distributions be made to her as necessary for her maintenance, support and/or
health.” It then found that if she made such a request, the co-trustee, Susan, would
have to make a decision under the terms of the trust whether or not to grant that
request. It further explained that in doing so, “Susan would have to use her
discretion … in good faith with the terms of the trust and under her fiduciary duty
to all of the trust beneficiaries.”

¶9 The court went on to explain that it had to focus on whether any
substantial change in circumstance occurred since the judgment of divorce, and if
so, does that change warrant a modification to the maintenance order to
accomplish two objectives—(1) to provide sufficient support to Deborah, and
(2) to achieve fairness for both parties. The court then stated that the best
evidence about what Deborah could reasonably expect her standard of living to be
at the time they divorced, had they remained married, was the MSA “that they
agreed to with legal representation and advice from CPAs and that [the trial court]
approved.”5

¶10 The court then addressed whether that change warranted a
modification of the maintenance order. It first addressed the support objective of
maintenance. It noted that since the divorce, Deborah had become the beneficiary
of her parents’ trust. It found that based on the value of the trust on January 31,
2021, Deborah was entitled to request and receive a distribution of $89,339.31 per
year. It then concluded that because Deborah had that asset “available to her for

5
Further detail of the circuit court’s reasoning is provided below.

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support reduces her need for maintenance from William to obtain the support
objective.”

¶11 The circuit court then addressed the fairness objective of
maintenance. It stated that at the time of the divorce, fairness required a
maintenance payment of $7,000 per month and the 16.5% of the gross commission
revenues that exceeded $1,666,000 to a maximum maintenance per year capped at
$280,000. It explained that the best evidence of that being fair is the terms of the
MSA that the parties reached with the help of attorneys and CPAs, and that the
trial court approved. The circuit court further stated that the “new asset [the trust]
that [Deborah] has available for her support makes the terms of maintenance as
outlined in the [MSA] … no longer fair to both parties[.]”

¶12 The circuit court then concluded that the substantial change in
circumstances warranted modifications to the maintenance order “to achieve the
support objective and the fairness objective.” It ordered that William’s base
maintenance payment be reduced to $0 per month and that the 16.5% of annual
gross revenues that exceed $1,666,000 to a maximum maintenance per year be
reduced from $280,000 to $190,669.69.6

¶13 William now appeals.

DISCUSSION

¶14 On appeal, William argues that in rendering its decision the circuit
court declined to consider as relevant to the statutory factors: (1) “evidence that

6
The circuit court subtracted the $89,339 that Deborah was entitled to receive from the
trust from the $280,000 to come to this amount.

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No. 2021AP993

showed the full financial picture of the parties in the years immediately leading up
to the divorce or the lifestyle they lived during that time”; (2) “evidence related to
the lifestyle [Deborah] could have reasonably anticipated enjoying if she had
remained married to [William]”; (3) Deborah’s “current budget, actual reasonable
budget or the full financial pictures of the parties following the divorce and at the
time of the evidentiary hearing”; and (4) “[t]he court declined to do the traditional
comparison of the financial circumstances, budgets, and needs at the time of
divorce and at the time of the modification hearing and how those financial
circumstances may have changed and whether [Deborah] could now be self-
supporting.”

¶15 We disagree, and we conclude that the circuit court reasonably
exercised its discretion in rendering its decision modifying the maintenance order.

I. Applicable Law

¶16 “The determination of the amount and duration of maintenance is
entrusted to the sound discretion of the circuit court, and this court will not disturb
the determination of the circuit court unless the circuit court abuses its
discretion.”7 LaRocque v. LaRocque, 139 Wis. 2d 23, 27, 406 N.W.2d 736
(1987). However, “[t]he exercise of discretion is not the equivalent of unfettered
decision-making…. [A] discretionary determination 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

7
Our supreme court has previously directed that the term “abuse of discretion” be
replaced with “erroneous exercise” of discretion. See City of Brookfield v. Milwaukee Metro.
Sewerage Dist., 171 Wis. 2d 400, 423, 491 N.W.2d 484 (1992).

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reasonable determination.” Id. (alterations in original; citations omitted). “A
circuit court engages in an erroneous exercise of discretion when it fails to
consider relevant factors, bases its award on factual errors, makes an error of law,
or grants an excessive or inadequate award.” Rohde-Giovanni v. Baumgart, 2004
WI 27, ¶18, 269 Wis. 2d 598, 676 N.W.2d 452.

¶17 A circuit court determining a maintenance award and an appellate
court reviewing a maintenance award must begin with WIS. STAT. § 767.56(1c)
(2021-22).8 See LaRocque, 139 Wis. 2d. at 31. The statute provides that the court
may grant an order requiring maintenance payments to either party for a limited or
indefinite length of time after considering all of the factors listed in the statute
which include:

(a) The length of the marriage.

(b) The age and physical and emotional health of the
parties.

(c) The division of property made under s. 767.61.

(d) The educational level of each party at the time of
marriage and at the time the action is commenced.

(e) 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.

(f) 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.

8
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted. However, we note that the LaRocque court cited to the 1985-86 version of the statutes.

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(g) The tax consequences to each party.

(h) 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, if the 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.

(i) The contribution by one party to the education, training
or increased earning power of the other.

(j) Such other factors as the court may in each individual
case determine to be relevant.

Sec. 767.56(1c). “These factors are the touchstone of analysis in determining or
reviewing a maintenance award. They reflect and are designed to further two
distinct but related objectives in the award of maintenance[.]” LaRocque, 139
Wis. 2d. at 32-33. Those objectives are “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).” Id. at 33.

¶18 Moreover, as our supreme court explained in Rohde-Giovanni:

While a change in circumstances regarding the
support objective of maintenance frequently gives rise to
parties’ motions for modification, it is important to note
that a court reviewing a previous award of maintenance
must not solely limit its inquiry to the support objective.
The objective of fairness also must be considered, even in
postdivorce proceedings. Fairness must be considered with
respect to the situations of both parties in determining
whether maintenance should be continued indefinitely,
continued for a limited amount of time, reduced, or
terminated.

Rohde-Giovanni, 269 Wis. 2d 598, ¶31. Further, in LaRocque, our supreme court
stated that “[w]e believe that a reasonable maintenance award is measured not by

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the average annual earnings over the duration of a long marriage but by the
lifestyle that the parties enjoyed in the years immediately before the divorce and
could anticipate enjoying if they were to stay married.” LaRocque, 139 Wis. 2d.
at 36 (emphasis added). In a subsequent case, the court went on to say that
“[w]hile a court may base maintenance on an increase in the payer’s income which
occurs in the years immediately preceding the divorce, a court may also set a
flexible percentage award which will take into account any post-divorce increases
which the parties could reasonably anticipate.” Hefty v. Hefty, 172 Wis. 2d 124,
134, 493 N.W.2d 33 (1992).

I. William forfeited his argument regarding the terms of the
trust

¶19 We first address whether William forfeited his argument regarding
the terms of the trust. William points out that the circuit court held that
disbursements from the trust to which Deborah had a “right” or “entitlement” by
mere written request and that did not need approval or an exercise of discretion of
the co-trustee, Susan, should be allocated to Deborah’s support needs in lieu of
William paying maintenance in that amount. By contrast, if the disbursements
required Susan’s approval or exercise of discretion then those disbursements
should not be allocated to Deborah’s support needs in lieu of William paying
maintenance in that amount.

¶20 William then states that he does not appeal or object to the court’s
use of that standard. He believes that it is a reasonable exercise of discretion for
the court to distinguish between disbursements that Deborah can exclusively
control and those that require Susan’s approval. He then states that he appeals the
amount and types of disbursements that were allocated because the circuit court’s

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application of this standard and its calculations are based upon errors that
materially alter and limit the reduction of William’s maintenance.

¶21 Deborah argues that William did not make this argument before the
circuit court and raises it for the first time on appeal and, therefore, forfeited the
argument. “When a party does not raise an issue in the trial court, the party loses
the right to raise that issue on appeal.” Cashin v. Cashin, 2004 WI App 92, ¶26,
273 Wis. 2d 754, 681 N.W.2d 255. The Cashin court then stated that the court
has discretion to decide an issue that has been forfeited and further stated, “We
generally do not do so when the issue involves questions of fact not brought to the
attention of the trial court, or an error that could have corrected had it been
brought to the trial court’s attention.” Id. (citations omitted).

¶22 We have searched the record and find no indication that William
raised this argument in the circuit court. However, it is clear from the record that
Section 5.06c. of the trust was an issue that William knew that the court would be
considering. Halley’s testimony and his report, admitted into evidence, stated that
Deborah did not have absolute control over any level of disbursement of principal
that she may need for her maintenance, support and health under Section 5.06c.
Rather, the person making the determination of what is necessary for Deborah’s
“maintenance, support and health” is the trustee. Moreover, under Section 8.06 of
the trust:

no individual Trustee who is also a current beneficiary of a
trust hereunder shall participate in exercising any discretion
as to whether or to what extent principal or income shall be
distributed or applied to or for his or her own benefit .…
All said powers shall be exercisable by the other Trustee
serving hereunder[.]”

(Emphasis omitted).

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¶23 Additionally, during the trial on the motion, William’s counsel
cross-examined Halley about Section 5.6.a. and b., but did not question him about
Section 5.06c. at all. Further, at the conclusion of the trial, the circuit court
directed counsel to submit their closing arguments in writing. In her closing
argument brief, William’s counsel told the court that Halley testified that Deborah
has a right on an annual basis to withdraw 5% of the value of the trust each year.
She then states that “[f]or anymore, [Deborah] merely needs the permission of her
sister to whom [sic] she is extremely close.” Rather than argue that Deborah has
an absolute right “to any amount of principal necessary for her maintenance,
support and health,” counsel conceded that Susan, as trustee, had to exercise her
discretion in granting or denying a request by Deborah for funds under Section
5.06c. of the trust. This is contrary to William’s argument on appeal.

¶24 “The party who raises an issue on appeal bears the burden of
showing that the issue was raised before the circuit court.” State v. Huebner,
2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727. This rule is “not merely a
technicality or a rule of convenience; it is an essential principle of the orderly
administration of justice.” Id. “The rule promotes both efficiency and fairness,
and ‘go[es] to the heart of the common law tradition and the adversary system.’”
Id. (quoting State v. Caban, 210 Wis. 2d 597, 604-05, 563 N.W.2d 501 (1997)).
Because William’s specific argument was not preserved, we see no compelling
reason to take up this issue now when William had ample opportunity to raise it in
the circuit court.

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¶25 Thus, we conclude that William forfeited his argument regarding
disbursements under Section 5.06c of the trust because he did not raise the issue
before the circuit court. 9

II. The Circuit Court properly analyzed the “Support
Objective” and the “Fairness Objective”

¶26 We next address whether the circuit court properly analyzed the
support objective and the fairness objective in determining whether the
maintenance order needed to be modified.10

9
Moreover we conclude that William conceded Deborah’s argument that he forfeited his
argument regarding payment under Section 5.06c because he did not mention, let alone refute,
Deborah’s argument in his reply brief. See United Coop. v. Frontier FS Coop., 2007 WI App
197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (holding that an appellant’s failure to dispute
respondent’s arguments in a reply brief may be taken as a concession).

Although we conclude that William forfeited his argument and conceded Deborah’s
forfeiture argument, we note that we agree with the circuit court’s interpretation of the Section
5.06c. of the trust. That provision provides that the “Trustee shall pay to or for the benefit of such
child … so much of the principal of this trust as may be necessary for such child’s maintenance,
support and health.” The language requires that someone must determine if the request is
“necessary.” The only person who can make that determination is the trustee. Under the terms of
the trust that person could not be Deborah. Section 8.06 provides in part “no individual Trustee
who is also a current beneficiary of a trust hereunder shall participate in exercising any discretion
as to whether or to what extent principal or income shall be distributed or applied to or for his or
her own benefit … All said powers shall be exercisable by the other Trustee serving hereunder.”
As noted above, William’s counsel acknowledged this in her closing argument brief. Moreover,
Section 5.06c. provides that the aggregate annual distribution of the principal of the trust “shall
not exceed” 5% of the value of the principal in a given year. William’s argument that Deborah
can demand at any time that an unlimited of principal be paid to her merely as a result of her
demand would render the cap in Section 5.06b superfluous. Thus we agree with the circuit
court’s interpretation of the trust.
10
The parties do not dispute that the circuit court properly concluded that Deborah’s
inheritance under the trust constituted a substantial change in circumstances. Thus, we will not
discuss the issue further.

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THE PARTIES’ ARGUMENTS

¶27 William argues that “the circuit court erroneously exercised its
discretion when it failed to consider relevant factors and evidence, created its own
finding of fact in the judgment of divorce, and did not adequately explain how
certain factual findings made met the dual objectives of a maintenance award.”
He asserts that the circuit court created “a sort of shortcut” to meet the LaRocque
standard.11 He states that the circuit court found that the maintenance portion of
the MSA provided the best evidence about what Deborah could reasonably, at the
time of divorce, expect as a standard of living had the parties remained married
and what she could reasonably expect as her standard of living at the time of the
trial. He notes that the court also stated that at the time of the trial, Deborah’s
“standard of living was equal to the standard of living that she reasonably could
have expected at the time of divorce had the parties remained married.”

¶28 William then argues that the court’s exercise of discretion was
erroneous because the trial court never made that finding, and due to the circuit
court’s shortcut, no court ever conducted the requisite analysis under the statutory
factors and dual objectives to make that finding. He then argues that the circuit
court failed to apply or misapplied the statutory factors to the proper legal standard
and, therefore, erroneously exercised its discretion.

11
William states that the LaRocque court stated that rather than considering the average
income earned over the years of the marriage, the circuit court should look at the “lifestyle that
the parties enjoyed in the years immediately before the divorce and could anticipate enjoying if
they were to stay married.” See LaRocque v. LaRocque, 139 Wis. 2d 23, 36, 406 N.W.2d 736
(1987). He states that the Larocque court further stated that in considering whether a
maintenance award meets that goal, the circuit court determining or reviewing a maintenance
award needs to consider the statutory factors under WIS. STAT. § 767.56(1c), and apply the
relevant ones while considering the dual objectives of need/support and fairness.

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¶29 Deborah agrees that the circuit court properly exercised its discretion
when it determined that her inheritance through the trust reduced her need for
maintenance from William and modified the maintenance order by eliminating the
$7,000 base monthly maintenance payments under the support objective.
However, she argues that the court did not erroneously exercise its discretion in
maintaining the maintenance formula from the gross revenues of William’s
insurance business because that is appropriate under the fairness objective. She
asserts that the percentage maintenance provision reflects the parties
understanding in 2009 of how William’s business fortunes could affect their
standard of living.

¶30 Deborah further argues that the circuit court recognized that by
including a provision for base maintenance and additional maintenance on a
percentage of William’s business income, in other words the negotiated MSA
reflected what the parties could reasonably expect their standard of living to be if
they stayed married. She asserts that their standard of living was tied to William’s
insurance business—if the insurance business did well and the parties were still
married, both Deborah and William could reasonably expect their standard of
living to increase. She asserts that her willingness to accept a provision in the
MSA tying her maintenance to the business’ success reflects her belief that the
company would do well and she could reasonably expect a lifestyle based on the
company’s success had they stayed married. She asserts that the maintenance
provision is itself, as the circuit court found, the best evidence of the standard of
living that Deborah could anticipate if they stayed married. Deborah argues that
she and William’s reasonable expectations were set forth in the maintenance
provision that anticipated that William’s business would earn gross revenues that
exceeded $1.7 million per year. The fact that the provision capped maintenance

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reflects that they believed that the revenues could far exceed that amount.
Deborah further asserts that her need for support was reflected in the base
maintenance payment and the fairness objective was reflected in the percentage
payment.

THE CIRCUIT COURT’S DECISION

¶31 We next address how the circuit court reached its conclusions. The
circuit court orally made findings of fact. After discussing the MSA and its
maintenance provisions, the court discussed the fact of Deborah’s inheritance
under the trust. It found that under the trust Deborah was entitled to receive on an
annual basis 5% of the value of the trust without needing anyone else’s approval.
It found that Deborah had not requested that she receive any disbursements from
the trust—she wanted to let the value of the trust continue to grow for both her
benefit and the benefit of her children as future beneficiaries upon her death.12
She found that as of January 31, 2021, the value of the trust was $1,000,786.35.

¶32 The court then made findings regarding William and Deborah’s ages
and health at the time of the trial.13 It found that William was better situated
financially than he was at the time of the divorce—he still owned his insurance
related business and was self-employed in the business. It found that William had
the ability to pay the maintenance amount ordered in the divorce judgment and
that he did not dispute his ability to make those payments. The court also found

12
As noted above, these children are also William’s children.
13
William was sixty-seven years old and was in general good health, with some health
issues that were managed and did not interfere with his ability to work or take care of himself.
Deborah was sixty-six years old and was in general good health, with some health issues that
were managed and did not interfere with her ability to work or take care of herself.

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that at the time of the trial, William’s standard of living was at least equal to, if not
better, than the standard of living that he reasonably could have expected at the
time of the divorce had the parties remained married.

¶33 The circuit court then found that Deborah was better situated
financially than she was at the time of the divorce, in great part due to her
inheritance in the trust. Her standard of living was equal to the standard of living
that she reasonably could have expected at the time of the divorce had the parties
remained married. The court found that Deborah continued to have the ability to
earn and contribute to her own support through work and wages, whether that was
through choosing to draw from her pension, retirement accounts and other assets.

¶34 The circuit court then stated that it wanted to make a note about the
fact findings that it was not making. It noted that the parties presented evidence
about the parties’ circumstances during the marriage, their level of education when
they were married and whether it changed during the marriage, their earnings at
the time that they were married and how that changed over the course of the
marriage and some other things.14 It stated that it made that decision because the
court was not relitigating the initial divorce case or judgment. It explained that it
had to focus on whether there was a substantial change in circumstances since the
divorce was granted and the trial. It stated that if there was a substantial change in
circumstances it had to determine whether the change warranted a modification of

14
The court went on to say that it was not forgetting about that evidence, but rather made
a conscious and mindful decision that it was not necessary for the court to make fact findings
more than what it did about the parties’ financial or other circumstances during the marriage or
while the divorce was pending or about why they agreed to the terms of the MSA. It noted that
the parties presented some evidence to the court about the parties’ assets and debts at the time of
the divorce and how those were divided under the MSA.

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the maintenance order to accomplish the two maintenance objectives—to provide
sufficient support to Deborah and to achieve fairness for both parties. The court
then found that the best evidence of what Deborah could reasonably anticipate, at
the time of the divorce, and her standard of living if they remained married, was
the MSA which the parties agreed to with their counsel, the advice from their
CPA’s and that the trial court approved.

¶35 The circuit court then addressed the issue of whether there was a
substantial change in circumstances since the divorce was granted and explained
its reasoning for its conclusion.15 The court then addressed whether the substantial
change in circumstances warranted a modification of the maintenance order. It
explained that it had to consider the dual maintenance objectives—the support
objective and the fairness objective.

THE SUPPORT OBJECTIVE

¶36 The court first considered the support objective. It noted that at the
time of the divorce the parties agreed that for Deborah to enjoy the standard of
living that she could have reasonably expected at that time had the parties
remained married, she needed $7,000 per month from William and an additional
16.5% of the annual gross commission revenues that exceeded $1,667,000 from
his insurance business to a maximum of $280,000.16

15
On appeal, the parties do not contest the court’s conclusion.
16
In her brief, Deborah states that her need for support was reflected in the base
maintenance and that the fairness objective is reflected in the percentage payment based on the
gross revenues of William’s insurance business.

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No. 2021AP993

¶37 The circuit court then stated that since the divorce Deborah became
the beneficiary of the trust under which she was entitled to receive a disbursement
from the trust annually in the amount of 5% of the value of the trust—at that time
in the amount of $89,339.31. It stated that the trust was an asset that was not
available to Deborah at the time of the divorce. The court then found that having
that “asset available to her for support reduces her need for maintenance from
William to obtain the support objective.” The court ordered that the maintenance
order was modified to reflect that “William shall pay Deborah a base maintenance
amount of zero dollars per month[.]”17

¶38 Deborah does not assert that the circuit court erred in reducing the
base maintenance per month to zero based on the distribution she could receive
from the trust. Thus, we need not consider the circuit court’s decision to reduce
the base maintenance further.

THE FAIRNESS OBJECTIVE

¶39 Addressing the fairness objective, the circuit court stated that
fairness required that “under all of the circumstances, at the time of the divorce …
fairness required a maintenance payment of $7,000 … [a]nd then the additional
16.5[%] of the annual gross commission revenues that exceeded [$1,667,000] to a
maximum of $280,000 a year in maintenance[.]”18 It then stated that Deborah
could receive 5% of the value of the trust annually and that the new asset, the trust,

17
We note that William does not argue that the circuit court erroneously exercised its
discretion in modifying the base maintenance award by reducing it to $0.
18
The court stated that the best evidence of its conclusion regarding fairness was the
terms of the MSA that the parties reached with their counsel, with the CPAs, and that the trial
court approved.

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No. 2021AP993

“makes the terms of maintenance as outlined in the marital settlement agreement
that was made part of the divorce judgment no longer fair to both parties.”

¶40 The circuit court then ordered that the maintenance order was
modified to reflect that “[William] shall pay [Deborah] 16.5% of annual gross
commission revenues that exceed $1,667,000 as maintenance from gross revenues
to a maximum $190,660.69 of maintenance per year[.]”

THE COURT DID NOT ERRONEOUSLY EXERCISE ITS
DISCRETION

¶41 We agree with Deborah that the circuit court did not erroneously
exercise its discretion in modifying the maintenance order. The circuit court
properly considered the two distinct but related objectives in the award of
maintenance—the support objective and the fairness objective. See LaRocque,
139 Wis. 2d at 33.

¶42 The circuit court focused its decision on the fairness objective. As
explained in LaRocque, the fairness objective is “to ensure a fair and equitable
financial arrangement between the parties in each individual case[.]” Id. The
LaRocque court further explained that “a reasonable maintenance award is
measured not by the average annual earnings over the duration of a long marriage
but by the lifestyle that the parties enjoyed in the years immediately before the
divorce and could anticipate enjoying if they were to stay married.” Id. at 36
(emphasis added). “Thus, the recipient spouse is entitled, assuming that the payor
spouse’s income permits it, to enjoy his or her life at the standard that he or she
‘could anticipate enjoying’ but for the divorce.” Heppner v. Heppner, 2009 WI
App 90, ¶10, 319 Wis. 2d 237, 768 N.W.2d 261 (quoting See Hefty, 172 Wis. 2d
at 134).

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No. 2021AP993

¶43 Consistent with these cases, throughout its decision in discussing the
fairness objective, the circuit court referred to what standard of living Deborah
could reasonably anticipate, at the time of the divorce, as her standard of living
had the parties remained married. It considered how it should determine the
standard of living that Deborah could reasonably anticipate as her standard of
living had the parties remained married. It concluded that the best evidence of
what standard she could reasonably anticipate was the maintenance provision in
the MSA that the parties agreed to and which was incorporated into the divorce
judgment.

¶44 William argues that the trial court never made such a finding at the
time of the divorce—that the circuit court created its own finding of fact in the
judgment of divorce. However, we note that the record reflects that although the
trial court did not use those magic words, it did make that finding. During the
hearing on October 26, 2009, the trial court stated:

I am further satisfied that the parties have disclosed
fully to each other their asset[s], debts, amounts and
sources of income on their respective financial declarations
and that the agreement they have made premised on those
disclosures is fair and reasonable in the circumstances.

This is a long-term marriage.… [T]hese parties have
been married since 1976, a term of some 33 years. There is
a disparity in earnings between the parties. William has an
insurance business. Deborah has been also employed
outside of the home with the Center for Deaf and Hard of
Hearing. The difference between incomes of these parties
is substantial. There is a program of indefinite maintenance
provided in the agreement for maintenance for an indefinite
term.… This appears to be reasonable to the Court. I am
going to approve the provisions that the parties have made.

I see from the mark ups on the copy of the [MSA]
in the court file this has been the subject of considerable
negotiation between the parties. As I said earlier … you
know your own lives better than I do....

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No. 2021AP993

I think what you have done with regard to
maintenance, given the respective circumstances of these
parties, is reasonable. It has the approval of the Court. It is
tied to some future events; how well William’s business
does. It is subject to annual recompilations. If projections
prove to be incorrect, then there can be adjustments made.
I think that is a reasonable approach here. The property has
been divided and likewise debt. This is a series of
compromises that the parties have made in order to arrive at
an agreement. Again, you made these with the assistance
and advice of counsel.

There was some testimony that there was
accounting advice, which I think is prudent considering that
there are also tax consequences attendant an event like this.
I am going to respect those the decisions also, so that this
agreement in its entirety will be approved by the Court and
will become part of the judgment of divorce.

Clearly, the trial court’s discussion regarding the fact that maintenance “is tied to
some future events; how well William’s business does” reflects that the court was
considering what Deborah and William reasonably anticipated would be their
standard of living in the future if they had stayed married. This is appropriate
when the court is considering the fairness objective.

¶45 We conclude that the circuit court did not err in finding that those
same factors that the trial court considered regarding Deborah and William’s
anticipated standard of living were also applicable at the trial on the motion to
modify the maintenance order. According to our supreme court’s decision in
Larocque, it is proper to consider the lifestyle that the parties “could anticipate
enjoying if they were to stay married.” Larocque, 139 Wis. 2d at 36. Moreover,
as our supreme court stated in Hefty, 172 Wis. 2d at 135, “[s]ince maintenance
recipients are forced to adjust their own lifestyle downward when a payer’s
income decrease, the recipients may be allowed to share in an increase in a payer’s
income.” The Hefty court went on to note that the payor pointed out that the
maintenance award in that case exceeded the recipient’s budget. Id. The court

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No. 2021AP993

stated that although the payor was correct, support is not the sole objective of
maintenance. Id. It explained that “[m]aintenance furthers two distinct
objectives: ‘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 agreement between the parties in each individual case (the
fairness objective).’” Id. (citation omitted).

¶46 Here, the circuit court concluded that at the time of the divorce,
Deborah reasonably anticipated that her standard of lifestyle, if she stayed married
to William, was dependent on how well his insurance business did. That
expectation was reflected in the trial court’s comment that the maintenance in the
MSA is tied to some future events—how well William’s business does. Clearly,
both Deborah and William understood that their lifestyle if they stayed married
was tied to William’s business. As William acknowledges, under the MSA,
Deborah could receive maintenance between $84,000 and $280,000, depending on
how well his business did. We also note that the maintenance provision provides
that William shall pay maintenance to Deborah based upon the formula “from all
his insurance related business interests.” Thus, if William sells his insurance
related business interests, Deborah would no longer be entitled to any maintenance
under the circuit court’s modified maintenance order. This reflects that the
provision is fair to both Deborah and William because once he is no longer
receiving revenue from his insurance business, he will no longer be obligated to
pay Deborah maintenance—she shares in the revenue, but only so long as William
is also receiving it.

¶47 In comparison to the circuit court’s focus on the fairness objective
and what standard of living Deborah could have reasonably anticipated if they
stayed married, William centers his arguments on what was Deborah’s monthly

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No. 2021AP993

budget that was necessary to maintain the lifestyle she enjoyed during the
marriage. He describes the circuit court’s analysis as, “the court appears to find
that the additional annual maintenance from the ‘unique 16.5% formula of gross
revenue payment’ is necessary to meet the fairness objective and ‘some sort of
enhanced lifestyle above that, enjoyed during the marriage,’” that Deborah could
have reasonably anticipated enjoying had the parties remained married. He also
refers to the maintenance being above and beyond Deborah’s reasonable budget
“necessary to maintain the lifestyle enjoyed during the marriage.” He describes
that lifestyle during the marriage as living “beyond their means, creating a dire
financial picture at the time of the divorce.”

¶48 Unlike the circuit court, William does not address holdings in cases
that discuss the standard of living the parties could anticipate enjoying if they
stayed married—not only the lifestyle they experienced during the marriage before
the divorce. By contrast, throughout its decision, the court stated it was
considering what Deborah could have “reasonably expected as her standard of
living had they remained married.” During its decision, the court stated “what
could [Deborah] have reasonably expected as her standard of living had they
remained married and [William] continued to work with these insurance business
interests and what he earned from them.”

¶49 We conclude that the circuit court did not erroneously exercise its
discretion when it determined that under the fairness objective of maintenance,
Deborah reasonably anticipated that her standard of living would substantially
improve if William’s insurance business did well and that the maintenance
formula in the MSA would provide for that expectation. In Hefty, our supreme
court stated that “it is proper to consider the lifestyle that the parties could
anticipate enjoying if they stayed married.” Hefty, 172 Wis. 2d at 134. It also

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No. 2021AP993

stated that a court “may also set a flexible percentage award which will take into
account any post-divorce increases which the parties could reasonably anticipate.”
Id.19

¶50 Here, the record reflects that both the trial court and the circuit court
took into consideration the fact that the parties reasonably anticipated marked
fluctuations in William’s income. The maintenance provision in the MSA not
only included a provision granting Deborah a percentage of William’s insurance
business’ gross revenues, but also set a cap on the amount she could receive—
$280,000. Moreover, Deborah is not entitled to any additional maintenance until
the gross revenues exceeded $1,667,000. We conclude that both the dollar amount
that triggers Deborah being able to begin receiving additional maintenance under
the formula and the cap show that the parties anticipated that their lifestyles would
improve.20

19
The circuit court had awarded Jean Hefty maintenance for an indefinite period of time
in the amount of $5,000 per month plus 20% of any bonus Thomas Hefty may receive in excess
of his base salary and child support in the amount of $1,500 dollars per month plus 10% of any
bonus which he receives in excess of his base salary. Hefty v. Hefty, 172 Wis. 2d 124, 128, 493
N.W.2d 33 (1992).

The court explained that its holding only addressed “those situations where the parties
could have reasonably anticipated marked fluctuations in income.” Id. at 135.
20
William asserts that during the marriage, Deborah and William lived a relatively upper
middle-class lifestyle, but to do so, they basically lived beyond their means, creating a dire
financial picture at the time of the divorce. We agree with Deborah’s argument that if they truly
believed that their circumstances were so dire and grim that they were on a downward trajectory
that would result in a low standard of living why would they include a maintenance provision not
only granting Deborah a percentage of FHK’s gross revenues, but also capping the maximum
maintenance that she could receive.

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No. 2021AP993

CONCLUSION

¶51 We conclude that William forfeited his argument that under Section
5.06c of the trust Deborah was entitled to receive additional distributions from the
trust in addition to the 5% distributions of principal under Section 5.06b because
he did not raise that argument before the circuit court. William also conceded
Deborah’s argument that he forfeited that argument because he did not raise it
before the circuit court because he did not refute her argument in his reply brief.

¶52 We also conclude that the circuit court did not erroneously exercise
its discretion in modifying the maintenance order and denying William’s motion
to terminate maintenance. Its order addressed the support objective by removing
the requirement that William pay Deborah a base maintenance of $7,000 per
month and the fairness objective by reducing the cap on the formula maintenance
from $280,000 to $ 190,000.69.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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