Angelika A. Heintz v. Bruce Heintz

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.
November 7, 2019
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2018AP1372 Cir. Ct. No. 2013FA331

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE MARRIAGE OF:

ANGELIKA A. HEINTZ,

PETITIONER-APPELLANT,

V.

BRUCE HEINTZ,

RESPONDENT-RESPONDENT.

APPEAL from orders of the circuit court for Jefferson County:
BENNETT J. BRANTMEIER, Judge. Reversed and cause remanded with
directions.

Before Fitzpatrick, P.J., Blanchard and Kloppenburg, JJ.
No. 2018AP1372

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).

¶1 PER CURIAM. In this divorce case, Angelika Heintz appeals post-
judgment orders of the circuit court that reduced the amount of the monthly
maintenance paid to her by her husband, Bruce Heintz, and required Angelika to
refund to Bruce maintenance overpayment.1 Angelika challenges the court’s
decision that an increase in Angelika’s income was a substantial change in
circumstances warranting the modification of maintenance, as well as other
determinations made by the court in ordering the modified maintenance payments.
Because the court failed to explain, and we cannot discern, a factually supported
basis for the court’s decision as to a substantial change in circumstances, we
reverse and remand for further proceedings consistent with this opinion. 2

1
Because both parties have the same last name, we will refer to the parties by their first
names for clarity.
2
We do not reach Angelika’s other challenges because the threshold issue we discuss,
the propriety of the circuit court’s decision as to a substantial change in circumstances warranting
modification of maintenance, is dispositive. See WIS. STAT. § 767.59(1f)(a) (2017-18) (A court
may modify or terminate maintenance “only upon a finding of a substantial change in
circumstances.”); Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436,
842 N.W.2d 508 (2013) (“An appellate court need not address every issue raised by the parties
when one issue is dispositive.”); State v. Heyer, 174 Wis. 2d 164, 170, 496 N.W.2d 779 (Ct. App.
1993) (“appellate court should dispose of an appeal on the narrowest possible ground”).

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted. The statutory language that we apply has not changed since the time relevant to the
motions here.

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BACKGROUND

¶2 There is no dispute as to the following facts. Angelika and Bruce
divorced in 2015 after twenty-four years of marriage. At the time of divorce,
Bruce worked at the post office and earned $5,256.31 gross income per month.
Angelika worked as a floral designer and earned $1,500.70 gross income per
month. Angelika and Bruce had one child, who would graduate from high school
in June 2016 and turn eighteen the following month. In the divorce judgment, the
circuit court noted that it “expects [Angelika] to make at least $22,879.00 as a full
time floral designer” after the child graduated from high school. The court found
it “appropriate under the facts of this case to equalize the income of the parties
after payment of child support” and “reasonable for each party to have
approximately the same amount of net income” to address their monthly budgets.
In order to accomplish this equalization of income, the court awarded Angelika
indefinite maintenance, commencing July 1, 2016, in the amount of $1,500 per
month.

¶3 On June 1, 2017, Bruce moved to terminate or modify maintenance,
based on multiple alleged substantial changes in circumstances, namely:
(1) Bruce’s gross income had decreased; (2) Angelika’s gross income had
increased; and (3) Angelika was “engaged in a marriage-like relationship with
Cory Olp.” On December 7, 2017 and January 3, 2018, a family court
commissioner heard testimony from Angelika, Bruce, their child, and Olp. The
commissioner denied Bruce’s motion to terminate or modify maintenance.

¶4 Bruce timely filed a motion for a de novo hearing in the Jefferson
County circuit court. In March and April 2018, the court held the hearing, at
which Angelika, Bruce, and Olp testified. The court decided that there was a

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substantial change in circumstances based on only one of the three changes alleged
by Bruce, namely, the alleged increase in Angelika’s income. The court found
that Angelika was earning $26,520 per year gross from her florist wages, as well
as “unexplained gross income of $900 per month as identified in Trial Exhibit 19”
(that is, $10,800 per year) for a total “earning capacity” of $37,320 per year. The
court decided that such an increase in Angelika’s income was a substantial change
in circumstances and ordered a reduction in the amount of Bruce’s maintenance
payments to Angelika from $1,500 per month to $837 per month in order to
equalize the parties’ gross incomes.

¶5 Bruce moved for reconsideration to reduce the amount further, based
on the after-tax net income results from inputting the circuit court’s gross income
findings into the TaxCalc18 Program. As a result, the court ordered Bruce to pay
Angelika taxable maintenance of $786 per month retroactive to July 1, 2017.
Because the cumulative effects of the court’s orders resulted in Bruce having
overpaid maintenance to Angelika by $8,500 between July 1, 2017 and June 30,
2018, the court also ordered that Bruce’s future thirty-four monthly payments to
Angelika be reduced by $250 per month, starting July 1, 2018. Angelika appeals.

¶6 We will state further details in the discussion below.

DISCUSSION

¶7 Angelika argues that the circuit court erroneously exercised its
discretion in deciding that there was a substantial change of circumstances based
on an increase in her florist wages and additional unexplained income for two
reasons: (1) her increased florist wages were contemplated at the time of divorce;
and (2) there is no evidence in the record supporting the court’s finding of an
additional $10,800 in current annual gross income earned by her at the time of the

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modification hearing. We first state the standard of review and applicable legal
principles, and we then address each of Angelika’s arguments in turn.

I. Standard of Review and Applicable Legal Principles

¶8 As stated above, a court may modify or terminate maintenance “only
upon a finding of a substantial change in circumstances.” WIS. STAT.
§ 767.59(1f)(a). The party seeking modification must show that the substantial
change in circumstances warrants the proposed modification. Rohde-Giovanni v.
Baumgart, 2004 WI 27, ¶30, 269 Wis. 2d 598, 676 N.W.2d 452. “This change
must be substantial and relate to a change in the financial circumstances of the
parties.” Benn v. Benn, 230 Wis. 2d 301, 309, 602 N.W.2d 65 (Ct. App. 1999)
(citations omitted). “The court should compare the facts surrounding the previous
order with the parties’ current financial status to determine whether the moving
party has established a substantial change in circumstances.” Jantzen v. Jantzen,
2007 WI App 171, ¶7, 304 Wis. 2d 449, 737 N.W.2d 5 (emphasis added).

¶9 We treat as discretionary a circuit court’s maintenance modification
decisions, including the court’s decision as to whether there has been a substantial
change in circumstances. Cashin v. Cashin, 2004 WI App 92, ¶44, 273 Wis. 2d
754, 681 N.W.2d 255. “Under this standard of review, we affirm the [circuit]
court’s decision on whether there is a substantial change in circumstances if there
is a reasonable basis in the record for the [circuit] court’s decision.” Id.; see also
Lemke v. Lemke, 2012 WI App 96, ¶7, 343 Wis. 2d 748, 820 N.W.2d 470. A
court properly exercises its discretion when it examines the relevant facts, applies
the correct standard of law, and uses a rational process to reach a reasonable
conclusion. Randall v. Randall, 2000 WI App 98, ¶7, 235 Wis. 2d 1, 612 N.W.2d
737.

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II. Angelika’s Arguments

A. Angelika’s Florist Wages

Pertinent Facts and Circuit Court Findings

¶10 As summarized above, at the time of divorce the circuit court found
that Angelika’s gross income as a florist was $1,500.70 per month (or $18,008.40
per year) and that Angelika was expected “to make at least $22,879.00 as a full
time floral designer” when her minor child graduated from high school in June
2016.

¶11 At the 2018 hearing, Angelika testified that she was working an
average of thirty-two to thirty-six hours per week as a florist and earning $15 per
hour. Accordingly, the circuit court that found Angelika was “earning $26,520 per
year gross ($15 per hour at 34 hours per week).”

Analysis

¶12 Angelika argues that the increase in her annual wages as a florist
between the time of the divorce and the time of the modification hearing was not a
proper basis to establish a substantial change in circumstances, because such an
increase was contemplated at the time of divorce, as expressed in the divorce
judgment. As summarized above, at the time of divorce, the circuit court
anticipated that she would earn at least $22,879 per year in 2016 after her child
graduated from high school. We understand Angelika to argue that the fact that
her annual florist wages had risen to $26,520 by 2018 was at least roughly in line
with what was anticipated at the time of the divorce, as expressed in the divorce
judgment.

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¶13 Critically, Bruce does not respond to Angelika’s argument that the
court at the time of divorce based its original maintenance order on Angelika’s
anticipated future florist wages, and that, therefore, her current higher florist
wages were anticipated at the time of divorce and were not a proper basis for the
court’s decision that there was a substantial change in Angelika’s financial
circumstances in 2018. Accordingly, we deem Bruce to have conceded that
Angelika’s argument is correct. See Charolais Breeding Ranches, Ltd. v. FPC
Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (“Respondents
on appeal cannot complain if propositions of appellants are taken as confessed
which they do not undertake to refute.”).

B. Angelika’s “Unexplained Cash Deposits” Income

¶14 Angelika argues that the circuit court also erroneously exercised its
discretion in relying on Exhibit 19 as indicative of Angelika’s current income to
support its decision that Angelika’s increased income was a substantial change of
circumstances. Specifically, Angelika argues that, even if these deposits
represented income during an earlier period of time, the court did not explain, and
the record does not support, its finding that such income continued beyond the
time of the last deposit shown in the exhibit, January 2017. Therefore, the
argument continues, the court had no evidentiary basis on which to find that
Angelika’s gross income exceeded her florist wages after January 2017. As we
now explain, we agree.

Pertinent Facts and Circuit Court Findings

¶15 The circuit court originally awarded maintenance in April 2015,
Bruce moved to modify maintenance in July 2017, and the de novo hearing on
Bruce’s motion took place in March and April 2018.

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¶16 At the hearing, Angelika testified that in January 2016 she formed a
business with Cory Olp known as HNM Motors, LLC. Angelika testified that,
although she and Olp attempted to start this business, the business “didn’t work”
and she and Olp stopped trying to make it work by the end of 2016 or the
beginning of 2017. Angelika acknowledged that a document from the Wisconsin
Department of Financial Institutions still listed her as the registered agent for the
business as of the time of the hearing, but testified that, regardless of her failure to
formally dissolve the business, “there is no income. There is nothing there. There
is a name.”

¶17 Bruce presented at the hearing Exhibit 19, which was a document
created for purposes of litigation by Bruce. Angelika affirmed that the exhibit
constituted a list (and accompanying images) of fifteen deposits made into
Angelika’s checking account from April 2015 to January 2017 totaling
$18,226.74. Angelika testified that the deposits were most likely from “money
from our savings account that [she and Bruce] shared before [the] divorce” and
that after the divorce, Angelika “took [her] half and took the cash. So I have my
cash at home for it. When I was short of money I had to deposit the money to pay
bills.” Angelika also testified that the source of some of the deposits was Olp’s
paying her back for purchases that he had made on her credit card.

¶18 The circuit court found both Angelika and Bruce “to be credible,”
although the court “did not find [] Olp to be credible.” Notably, while the court
was not more specific than this in its credibility findings, the court expressed no
criticism or doubt about any of the testimony given by Angelika.

¶19 The circuit court separately found that the Exhibit 19 deposits
constituted evidence that Angelika “earns unexplained gross income of $900 per

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month.” The court noted that, as of the time of the hearing, Olp “still has a sign
posted on his property for the business.” The court further noted that Angelika
was still listed as the registered agent for the business. In addition, the court
observed that, at the time of the motion hearing held before the court
commissioner in December 2017, Angelika had testified that she continued to
allow Olp to use her credit card to purchase parts and equipment for his business,
but that Olp would “immediately” pay her back.

¶20 The circuit court rounded the Exhibit 19 total down to $18,000, then
divided the figure by twenty months to arrive at a monthly income of $900,3 which
it called “unexplained gross income.” The court added to Angelika’s increased
florist wages the “unexplained gross income of $900 per month” to find that
Angelika “has total present gross income of $37,320 per year” (emphasis added).

Analysis

¶21 As we stated above, in determining whether there is a substantial
change in circumstances warranting modification of maintenance, a circuit court
must compare the facts surrounding the previous order to the parties’ current
financial status. Jantzen, 304 Wis. 2d 449, ¶7 (emphasis added).

¶22 We agree with Angelika that the circuit court engaged in an
erroneous exercise of discretion in making the comparison. Specifically, the court
failed to explain why the monthly “unexplained gross income of $900” indicated
in Exhibit 19 for the time period from April 2015 to January 2017 could be

3
The deposits in Trial Exhibit 19 appear to have taken place over twenty-one, not twenty
months, and $18,226.74 divided by twenty-one equals $867.94. Because neither party raises this
issue, we proceed with our analysis based on the calculations used by the circuit court.

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No. 2018AP1372

attributed to Angelika’s current financial situation, when the last deposit in Exhibit
19 was made in January 2017. The court pointed out that Angelika was
continuing to allow Olp to use her credit card so long as Olp paid her back right
away. On this particular point, we fail to see how her allowing Olp to use her
credit card, along with the unrebutted testimony that he immediately repaid her,
could reasonably provide a basis to support a finding that Angelika was receiving
income from Olp or the business.

¶23 More generally, the circuit court failed to explain how any of this
evidence reasonably supported its conclusion that Angelika continued to earn $900
in income per month based on the facts of record, and we cannot discern a
reasonable basis in the record to support the conclusion. For example, the mere
existence of the sign for the business could stand for little, given the testimony of
Angelika, which the court credited. The same goes for the form indicating
registration of the business in Angelika’s name. Because an exercise of discretion
requires a rational explanation based on the facts and law, the court erroneously
exercised its discretion in failing to provide an explanation as to how evidence of
deposits, which the only relevant testimony established ended in January 2017,
reflected Angelika’s current income. See Jantzen, 304 Wis. 2d 449, ¶7.4

¶24 Bruce’s argument to the contrary fails to persuade. Bruce notes that
the circuit court also relied on Exhibit 19 to find that Angelika and Olp “fashioned
their finances in a manner intended to prevent the modification of maintenance.”

4
We note that, while the circuit court found Olp not to be credible, Angelika’s
arguments against a substantial change in circumstances do not depend on any of Olp’s
testimony. In testimony that the court did credit, Angelika made all of the points that support her
arguments.

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Bruce argues that by making this finding the court “intended to convey” that it
could not determine the extent to which Angelika continued to intermingle her
finances with Olp’s finances because, in Bruce’s words, their “actions were
designed to deceive the court.” In support of this argument, Bruce points to three
pieces of evidence that he maintains showed deceit, but for which Angelika
provided explanations that, if credited, rebutted any such implication. The court
explicitly found Angelika credible, which is impossible to reconcile with a
conclusion that the court “intended to convey” that Angelika arranged her finances
in a manner intended to deceive the court about her income. In effect, Bruce asks
this court to find deception by Angelika where the court found no deception on her
part.

¶25 Bruce also asserts that the circuit court “concluded” that the
cohabitation of Angelika and Olp was part of an overall substantial change in
circumstances since the date of the divorce. However, the court made no such
finding. Bruce may mean to suggest that the court found that Angelika was, at the
time of the modification hearing, improperly using maintenance to support Olp’s
lifestyle. However, as we have explained, the court based its substantial change in
circumstances decision solely on the premise that Angelika’s income had
increased. We conclude that this was an erroneous exercise of discretion.

CONCLUSION

¶26 For the reasons stated, we reverse the circuit court’s decision that
there was a substantial change in circumstances, namely an increase in Angelika’s
income, which warranted modification of the maintenance award from Bruce to
Angelika. Because the court reduced the amount of maintenance Angelika
received to $786 a month retroactive to July 1, 2017, and further reduced that

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monthly figure by $250 per month for thirty-four months starting July 1, 2018 in
order to accommodate the “repayment” of maintenance that it found Bruce had
overpaid, we reverse and remand for the circuit court to reinstate the original
maintenance award and to order Bruce’s repayment of the amounts Angelika was
entitled to, and not paid, starting July 1, 2018. The details of the repayment
schedule are to be determined by the court in its discretion.

By the Court.—Orders reversed and cause remanded with directions.

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

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