James T. Murphy v. Nancy C. Holland

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.
December 16, 2021
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. 2020AP1802 Cir. Ct. No. 2008FA304

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE MARRIAGE OF:

JAMES T. MURPHY,

PETITIONER-RESPONDENT-CROSS-APPELLANT,

V.

NANCY C. HOLLAND,

RESPONDENT-APPELLANT-CROSS-RESPONDENT.

APPEAL and CROSS-APPEAL from a judgment and an order of
the circuit court for Dane County: JULIE GENOVESE, Judge. Affirmed in part;
reversed in part and cause remanded with instructions.

Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.

¶1 GRAHAM, J. When James Murphy and Nancy Holland divorced in
2010, Holland was awarded indefinite spousal maintenance as a percentage of
No. 2020AP1802

Murphy’s income. Holland appeals a subsequent judgment of the circuit court,
entered in 2020, that granted Murphy’s motion to terminate maintenance. She
argues that the court erred when it determined that there had been a substantial
change in the parties’ financial circumstances and, further, that the court’s
decision to terminate maintenance constituted an erroneous exercise of discretion.
We conclude that the court did not erroneously terminate maintenance.

¶2 Murphy cross-appeals the provision of the circuit court’s 2020
judgment and a subsequent order requiring him to pay a portion of Holland’s
attorney fees. We reject the majority of Murphy’s arguments. However, as
explained below, we conclude that the court did not make one finding necessary to
support a fee award under WIS. STAT. § 767.241(1)(a) (2019-20).1

¶3 Accordingly, we reverse the portions of the 2020 judgment and the
subsequent order pertaining to the attorney fee award, affirm all other aspects of
the judgment and order, and remand to the circuit court for further consideration of
the attorney fee issue and to make any findings necessary to support its decision.

BACKGROUND

¶4 The circuit court proceedings leading to this appeal were fact-
intensive and prolonged. We limit our focus to the facts that are pertinent to the
parties’ arguments on appeal. When possible, we recite the facts as they were
stated in circuit court and arbitration orders, and we supplement the facts from
other sources in the record as needed.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

2
No. 2020AP1802

¶5 Murphy and Holland were divorced in 2010 after a thirty-year
marriage. At the time of the divorce, Murphy was fifty-four years old and Holland
was fifty-five. Murphy worked as an emergency room physician for multiple
employers in different states, and his income fluctuated from month to month.
Holland was a stay-at-home mother and homemaker.

¶6 In the months leading up to the 2010 judgment of divorce, the parties
agreed that Murphy would pay indefinite spousal maintenance to Holland.
However, they disagreed on the amount of the maintenance payments and other
matters, such as how the parties’ substantial marital debt would be paid. The
parties stipulated that they would resolve these and other contested matters
through binding arbitration.

¶7 As relevant here, the arbitrator developed a plan for the parties to
pay off the marital debt, and also determined the amount of maintenance and a
system by which it would be paid. Specifically, the arbitrator ordered that, after
paying marital debt, Murphy would pay half of his gross income to Holland (after
it was adjusted for any income imputed to Holland). The arbitrator also ordered
annual “true-ups” prepared by the parties’ accountant to ensure that the proper
amount was paid to Holland each year. These provisions were incorporated into
the 2010 divorce judgment, which also provided that disputes over the calculation
or modification of maintenance would be submitted to binding arbitration.

¶8 In 2012, after Holland alleged that Murphy was hiding income, the
parties once again engaged in binding arbitration with the same arbitrator. The
arbitrator determined that Murphy had underpaid his maintenance obligation and
ordered him to pay arrearages. The arbitrator also modified the system for paying
maintenance and marital debts. Moving forward, Murphy would deposit all

3
No. 2020AP1802

paychecks into a joint account, over which Holland would have exclusive control.
Holland would pay both parties’ marital debts from this account, and then, after
making adjustments for her imputed earnings, she would divide the remaining
funds equally between herself and Murphy. The annual true-ups would continue.
The arbitrator ordered Murphy to adjust his tax withholding to maximize the funds
deposited into the joint account, and ordered Holland to use her best efforts “to
manage bill payments in a manner that leaves sufficient funds for each party’s
daily personal and business activities.” These changes were memorialized in an
amended arbitration award, which we refer to as the “2012 arbitration award.”

¶9 The parties continued to have conflicts over maintenance and
arrearages. In August 2014, Holland sought and obtained contempt sanctions on
the grounds that Murphy had failed to make arrearage payments ordered by the
arbitrator and had stopped depositing his paychecks into the joint account.

¶10 Then, in December 2015, Murphy sought to modify or terminate
maintenance based on, among other things, changes in his income and
employment and the recent loss of his Medicare billing privileges as a physician.2
Murphy emailed the arbitrator, indicating that he could not pay the cost of
arbitration, and the arbitrator, in turn, withdrew from participation and referred the
matter back to the circuit court. During the proceedings that followed, Murphy
also sought to reduce the arrearages he owed based on alleged miscalculations by
the accountant who conducted the annual true-ups. Holland responded by seeking
contempt sanctions on grounds that Murphy had failed to pay maintenance

2
It appears that Murphy initially lost his Medicare billing privileges in 2015, that he
regained his privileges at some point during the trial, and that he lost his privileges again in
December 2020, shortly after the court issued the 2020 judgment.

4
No. 2020AP1802

arrearages and was hiding income. Murphy filed his own contempt motions,
alleging that Holland was willfully managing the joint account in a way that
deprived him of the use of any income. By the time the proceedings were over,
multiple contempt motions had been filed by both parties.

¶11 Starting in March 2017, the circuit court commenced what ended up
being an eight-day trial spanning several years. The issues set for trial were the
parties’ competing contempt motions, their dispute over the amount of
maintenance arrearages, and Murphy’s motion to modify or terminate
maintenance.

¶12 After four days of trial in March and April 2017, the trial was
postponed for more than two years due to uncertainty regarding Murphy’s
continued employment and expected income. During this time, the circuit court
held numerous status conferences and hearings to address issues related to the
parties’ financial circumstances and Murphy’s fluctuations in income. Following
a status conference, the court entered what we refer to as the “May 2018 order.”
In the May 2018 order, the court anticipated that the trial would resume and, at
Murphy’s request, the court addressed his “maintenance obligations in the
interim.” The court ordered that, given his “changed employment circumstances,”
Murphy would pay Holland “a set amount of $10,000 each month in maintenance
payments effective [on a date certain] and continuing until the next hearing.”

¶13 The circuit court held the final four days of trial in July 2019.
During this phase of the trial, the parties entered into stipulations resolving the
amount of Murphy’s maintenance arrearages and the contempt motions. The
parties stipulated that Murphy owed Holland $285,148.50 in arrearages, and that
he would pay an additional $100,000 toward Holland’s attorney fees to “purge his

5
No. 2020AP1802

contempt.” The parties represented that the stipulations resolved all contempt
motions filed by both parties. As a result of the stipulations, the only remaining
issues for trial were how Murphy was going to pay his arrearages and whether
maintenance should be modified or terminated.

¶14 Following the final day of trial, but before the circuit court entered
its final judgment, Murphy began working for another healthcare provider and his
income increased significantly. The court held a status conference on October 25,
2019, and, at Holland’s request, it entered a second interim order. This order,
which we refer to as the “October 2019 order,”3 increased the monthly
maintenance payments from $10,000 to $15,000 and ordered Murphy to liquidate
certain accounts to pay down his arrearages.

¶15 The parties submitted proposed findings of fact and conclusions of
law. Then, in September 2020, the circuit court issued its findings of fact,
conclusions of law, and judgment, which we refer to as the “2020 judgment.” In
the 2020 judgment, the court determined that there had been a substantial change
of circumstances warranting a termination of maintenance. Although Murphy had
asked the court to terminate his maintenance obligation retroactively as of
January 2016, the court determined that maintenance should instead be terminated
in October 2020 when Murphy turned sixty-five. In broad strokes, the court
determined that: both parties were at retirement age; the system set up by the
arbitrator had proven to be unworkable; Holland had received substantial

3
Throughout their briefing, the parties refer to the circuit court’s oral decision in
October 2019. The court did not enter any written order memorializing its decision until
December 2019, but, following the parties’ lead, we use the date of the court’s oral decision when
referring to this event.

6
No. 2020AP1802

maintenance payments over the past ten years and could be self-supporting once
Murphy paid the arrearages that he currently owed; Murphy’s assets had been
drained; and Murphy could not continue to pay maintenance and at the same time
meet his needs and save for retirement.

¶16 At the same time, the circuit court determined that Holland’s
“substantial” attorney fees would “likely eat away at her ability to live,” and that it
was reasonable for Murphy to contribute toward the payment of those fees.
Therefore, the court’s 2020 judgment invited the parties’ submissions on the
amount of fees it should order Murphy to pay. After considering those
submissions, the court issued an order requiring Murphy to contribute a total of
$102,505 payable directly to Holland’s attorneys over two years.

¶17 We provide additional background about the arguments and
evidence introduced during the circuit court proceedings, the stipulations resolving
the contempt sanctions, and the court’s reasoning regarding termination of
maintenance and attorney fees as needed below.

DISCUSSION

¶18 As stated above, Holland appeals the 2020 judgment terminating
maintenance, and Murphy cross-appeals the provision in the judgment and
subsequent order requiring him to contribute to Holland’s attorney fees beyond the
amount he agreed to pay to purge his contempt. We address the appeal and cross-
appeal in turn.

I. Holland’s Appeal Regarding Maintenance

¶19 We begin by setting forth principles regarding maintenance and
motions to modify maintenance. There are two distinct but related objectives to

7
No. 2020AP1802

maintenance—support and fairness. LaRocque v. LaRocque, 139 Wis. 2d 23,
32-33, 406 N.W.2d 736 (1987). A maintenance award should “support the
recipient spouse in accordance with the parties’ needs and earning capacities ….”
Rohde-Giovanni v. Baumgart, 2004 WI 27, ¶29, 269 Wis. 2d 598, 676 N.W.2d
452. It should also result in “a fair and equitable financial arrangement between
parties.” Id. Generally speaking, maintenance is not meant as a permanent
annuity. Hefty v. Hefty, 172 Wis. 2d 124, 138, 493 N.W.2d 33 (1992). The goal
is for both parties to maintain, when possible, a standard of living reasonably
comparable to the one the parties enjoyed “‘in the years immediately before the
divorce and could anticipate enjoying if they were to stay married.’” Id. at 134
(emphasis omitted) (citing LaRocque, 139 Wis. 2d at 36).

¶20 At the time of a divorce, the circuit court must determine whether to
order maintenance payments in any amount, and, if so, it must choose between a
limited-term or indefinite maintenance and set the amount. In making these
determinations, the court considers a non-exhaustive list of factors enumerated in
WIS. STAT. § 767.56(1c)4 in light of the dual objectives of support and fairness.
See LaRocque, 139 Wis. 2d at 32-33.

4
WISCONSIN STAT. § 767.56(1c) states that, in a divorce judgment, “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 following” factors summarized here: (a) the length of the marriage;
(b) each party’s age and physical and emotional health; (c) the division of property made under
WIS. STAT. § 767.61; (d) each party’s educational level at the time of marriage and at the time the
action is commenced; (e) the earning capacity of the party seeking maintenance; (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; (g) the tax consequences to each party; (h) any mutual agreement made by the parties
before or during the marriage; (i) the contribution by one party to the education, training, or
increased earning power of the other; and (j) such other factors as the court may in each
individual case determine to be relevant.

(continued)

8
No. 2020AP1802

¶21 Once maintenance is ordered, the circuit court may modify the order
pursuant to WIS. STAT. § 767.59(1c). A party seeking a modification must
“demonstrate that there has been a substantial change in circumstances warranting
the proposed modification.” Rohde-Giovanni, 269 Wis. 2d 598, ¶30.

¶22 When evaluating a modification motion, the circuit court first
considers the threshold question of whether the party seeking the modification has
proven a substantial change in circumstances. Id. The “focus” of this inquiry
should be on “any financial changes the parties have experienced.” Id.; see also
Gerrits v. Gerrits, 167 Wis. 2d 429, 437, 482 N.W.2d 134 (Ct. App. 1992). “[F]or
purposes of evaluating a substantial change in the parties’ financial circumstances
… the appropriate comparison is to the set of facts that existed at the time of the
most recent maintenance order, whether that is the original divorce judgment or a
previous modification order.” Kenyon v. Kenyon, 2004 WI 147, ¶27, 277 Wis. 2d
47, 690 N.W.2d 251.

¶23 If the circuit court finds that there has been a substantial change in
circumstances, it must then determine whether and how maintenance should be
modified. See id., ¶3. In making this decision, the court “reconsiders the
[statutory] factors used to arrive at the initial maintenance award” and the “dual
maintenance objectives of support and fairness.”5 Id., ¶¶13, 39; see also Rohde-

WISCONSIN STAT. § 767.56(1c) has been renumbered from its previous designation as
WIS. STAT. § 767.26. See 2005 Wisconsin Act 443, § 110. Earlier cases make reference to these
same factors as the § 767.26 factors. See, e.g., Rohde-Giovanni v. Baumgart, 2004 WI 27, ¶13,
269 Wis. 2d 598, 676 N.W.2d 452 (citing § 767.26 (1999-2000)).
5
As the Rohde-Giovanni court noted, “the correct test regarding modification of
maintenance should consider fairness to both of the parties under all of the circumstances, not
whether it is unjust or inequitable to alter the original maintenance award.” Rohde-Giovanni,
269 Wis. 2d 598, ¶32.

9
No. 2020AP1802

Giovanni, 269 Wis. 2d 598, ¶¶28-29; Vander Perren v. Vander Perren, 105 Wis.
2d 219, 230, 313 N.W.2d 813 (1982) (determining that an order terminating
maintenance was arbitrary because the circuit court did not consider the statutory
factors). In its analysis, the circuit court needs to take into account only those
statutory factors that are relevant to the facts presented. DeLaMatter v.
DeLaMatter, 151 Wis. 2d 576, 586, 445 N.W.2d 676 (Ct. App. 1989).

¶24 We begin our analysis by resolving the parties’ dispute over the
applicable standard of review. We then turn to Holland’s arguments that there had
been no substantial change in the parties’ circumstances, and that the circuit court
should not have terminated maintenance.

A. Standard of Review

¶25 Holland cites Murray v. Murray for the proposition that the
existence of a substantial change in circumstances is an issue of law reviewed de
novo. See Murray v. Murray, 231 Wis. 2d 71, 77, 604 N.W.2d 912 (Ct. App.
1999). That may have been a correct statement of the law when Murray was
decided. However, our supreme court has since clarified that we review a circuit
court’s determination that there has been a substantial change in circumstances for
an erroneous exercise of discretion. Rohde-Giovanni, 269 Wis. 2d 598, ¶17; see
also Cashin v. Cashin, 2004 WI App 92, ¶44, 273 Wis. 2d 754, 681 N.W.2d 255
(explaining that Rohde-Giovanni changed the standard of review). This same
standard is applied when reviewing the circuit court’s ultimate decision to modify
or terminate a previous maintenance award based on the statutory factors and dual
objectives of maintenance. See Cashin, 273 Wis. 2d 754, ¶¶42-44. “A circuit
court erroneously exercises its discretion when it fails to consider relevant factors,
bases its award on factual errors, makes an error of law, or grants an excessive or

10
No. 2020AP1802

inadequate award.” Rohde-Giovanni, 269 Wis. 2d 598, ¶18. A purported error of
law by the circuit court in determining maintenance is reviewed de novo. Id., ¶19.

B. Substantial Change in Circumstances

¶26 Having clarified the proper standard of review, we turn to Holland’s
arguments that the circuit court erred when it determined that Murphy satisfied his
burden to prove a substantial change in circumstances. We reject each of these
arguments for reasons we now explain.

¶27 Holland argues that the circuit court erred when it considered
whether circumstances had substantially changed since the date of the divorce.
She contends that the proper point of comparison was October 2019 because the
court’s October 2019 order was “the most recent maintenance modification” order.
According to Holland, the court “converted maintenance from a percentage ... to a
fixed payment” of $10,000 in May 2018, and then in October 2019, the court
again modified the amount of maintenance to $15,000. Relying on Kenyon, 277
Wis. 2d 47, she contends that the court was limited to considering whether
circumstances had changed since October 2019. We reject this argument for two
reasons, either of which is sufficient to resolve this issue.

¶28 First, Holland forfeited this argument by not timely raising it during
the circuit court proceedings, and we discern no good reason to overlook her
forfeiture in this case. Holland did not argue at any time prior to the issuance of
the 2020 judgment that the court was limited to considering financial changes
since the last interim order. The closest she came to this topic was when she
asserted the following in her proposed findings of fact and conclusions of law:
“Whether the analysis compares the parties today to the parties at the time of the
divorce, or October 25, 2019, when maintenance was last adjusted, Dr. Murphy

11
No. 2020AP1802

has failed to meet his burden to show a substantial change in his income or plans
for future employment.” Holland did not advance the argument that the court was
limited to considering financial changes since October 25, 2019, until after the
court issued the 2020 judgment, which contained its analysis of changes that had
occurred since the divorce.6

¶29 As a general matter, an issue must be properly “raised in the circuit
court to be eligible for review upon appeal.” Schinner v. Schinner, 143 Wis. 2d
81, 94 n.5, 420 N.W.2d 381 (Ct. App. 1988). The forfeiture rule exists in large
part so that courts and litigants “have notice of the disputed issues as well as a fair
opportunity to prepare and address them in a way that most efficiently uses
judicial resources.” State v. Agnello, 226 Wis. 2d 164, 173, 593 N.W.2d 427
(1999). The forfeiture rule also prevents “sandbagging” errors—that is, “failing to
object to an error for strategic reasons and later claiming that the error is grounds
for reversal.” State v. Huebner, 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d
727. Without the forfeiture rule, attorneys “might be induced to build in an error
to ensure access to the appellate court,” notwithstanding their failure to raise the
issue at trial. Vollmer v. Luety, 156 Wis. 2d 1, 11, 456 N.W.2d 797 (1990). As
stated above, Holland did not raise this argument in her pre-judgment submission.
She advanced it only after the court issued an adverse decision, when she was
preparing to appeal. The policies underlying the forfeiture rule support its
application here.

6
Specifically, Holland first raised the argument in a motion for reconsideration of the
2020 judgment, and then in a motion to stay that judgment.

12
No. 2020AP1802

¶30 Second, even if Holland had not forfeited the argument, we would
conclude that the rule from Kenyon did not limit the circuit court’s consideration
to financial changes that occurred after the October 2019 order. In Kenyon, there
had been a previous proceeding in which the circuit court entered a final order
modifying maintenance, and a party sought a subsequent modification in a second
proceeding. Kenyon, 277 Wis. 2d 47, ¶¶16-17. In such cases, our supreme court
explained, “it would be inappropriate to use the facts surrounding the original
divorce judgment as a baseline for an evaluation of any subsequent substantial
change” because the court “already found the parties’ original financial
circumstances to be substantially changed in the first modification proceeding.”
Id., ¶16. The Kenyon court further explained that, “at a second modification
proceeding, the operative maintenance award from which relief is sought is
embodied in the … latest modification order, which ... was necessarily based on a
finding of substantial change in circumstances from those existent at the time of
the original divorce judgment.” Id., ¶17. Plainly, the rule from Kenyon is aimed
at preventing the relitigation of facts and issues determined in “previous
proceedings.” Id., ¶2.

¶31 Here, by contrast, neither the May 2018 order nor the October 2019
order constituted a decision in a “previous proceeding” that there had been a
substantial change in circumstances warranting a modification. Instead, the parties
requested these interim orders in this proceeding regarding the then-pending
motions, at a time when the issues raised by Murphy’s motion to modify
maintenance were live and subject to ongoing litigation.7 As the circuit court later

7
The May 2018 order was requested by Murphy and the October 2019 order was
requested by Holland. Neither party challenged the circuit court’s authority to enter the interim
orders or its exercise of discretion in doing so. See WIS. STAT. § 767.225(1)(d) (providing the
(continued)

13
No. 2020AP1802

explained, both interim orders had been stop-gap measures that attempted to
ensure “that the status quo was maintained” until the trial was over and the court
could issue a decision on Murphy’s motion.8 When the court issued the October
2019 order, it unequivocally stated that the order was “a short-term thing,” and
that it was not making any final adjudication of what maintenance should be.
Neither of the orders reflected a finding that there has been a substantial change in
circumstances warranting a modification, and neither order purported to alter the
arbitrator’s decision that Holland was entitled to half of the parties’ gross income.
Indeed, as Holland herself asserts in her appellate briefing, the “system” set up by
the arbitrator to ensure an equal division of income was repeatedly modified
following the divorce, but “the overall equal division of marital income continued
from the time of the divorce until the [2020 judgment].” (Emphasis added.)

¶32 Based on the forfeiture rule and our consideration of the merits, we
reject Holland’s Kenyon-based argument. We conclude that, in issuing the 2020

court in “an action affecting the family” with the authority to temporarily require one spouse to
pay for the “just and reasonable” maintenance of the other spouse “during the pendency of the
action”).
8
The circuit court’s explanation is well supported by the record. When the court entered
the May 2018 order, it explained that it did not “want to have to be dealing with” the parties’
accounting arguments “every time [Murphy’s] income fluctuates,” that the “cleanest thing to do”
was to order a set amount per month, and that “that’s what we’ll do until we can sort out all the
figures.” The court set that amount at $10,000.

Then, during a status conference on October 25, 2019, Holland asked for this amount to
be increased. At that time, her attorney correctly noted the following: that, despite the May 2018
order, “the original [arbitration award] stands”; that it had been “adjusted” in May 2018 based on
Murphy’s “substantial reduction in income and loss of jobs”; and that the intent of the May 2018
order had been to “split[] the income equally.” Holland’s attorney argued that $10,000 had been
“half of the income” when the May 2018 order was entered, but that Holland should not be “stuck
with” $10,000 per month after Murphy’s income increased, and that Murphy’s payments to
Holland should be increased “to put him at 50/50.” The circuit court accepted this position, and it
entered the October 2019 order that Holland relies on in this appeal.

14
No. 2020AP1802

judgment, the circuit court properly considered whether there had been a
substantial change in circumstances since the time of the divorce.

¶33 Holland next argues that, even if the circuit court properly
considered whether the parties’ circumstances had changed since the divorce, the
court erred as a matter of law because the changes it considered were
“foreseeable” at the time of the divorce and were not financial in nature. See
Rosplock v. Rosplock, 217 Wis. 2d 22, 35-36, 577 N.W.2d 32 (1998) (concluding
that rental income derived from a new investment property did not constitute a
substantial change in circumstances because the parties “envisioned” that both
spouses would invest funds obtained in the property division at the time of the
divorce); Jantzen v. Jantzen, 2007 WI App 171, ¶¶15, 17, 21-22, 304 Wis. 2d
449, 737 N.W.2d 5 (concluding that the circuit court erred in terminating a
limited-term maintenance award based on the aging of the parties, the termination
of child support payments, and other circumstances “anticipated” at the time of the
divorce).

¶34 To support her argument that the circuit court based its substantial
change decision on foreseeable circumstances, Holland focuses on one specific
paragraph in the 2020 judgment, which states:

I conclude that there has been a substantial change
of circumstances warranting the termination of
maintenance. Dr. Murphy will be 65 years old. He should
not be required to work multiple full-time jobs to support
Ms. Holland, who is living the retired life in a beautiful
Mexican condominium. The children are grown and the
parties have virtually reduced all of the debt from the
marriage, save some modest [educational] loans.

15
No. 2020AP1802

According to Holland, “[t]he parties and their children aging were undoubtedly
foreseen at the time of divorce,” and the reduction of the marital debts was a
foreseeable direct result of the 2010 and 2012 arbitration orders.

¶35 We agree with Holland that at least two considerations noted in this
paragraph were foreseeable at the time of the divorce—that Murphy would age
and the children would age. However, the circuit court issued a sixteen-page
decision, which makes multiple findings of fact that compared the parties’
financial circumstances at the time of the divorce with their circumstances at the
time of the 2020 judgment. In addition, even if a circuit court’s exercise of
discretion is inadequately expressed, we will generally search the record for
reasons to sustain the court’s discretionary decision. See Schauer v. DeNeveu
Homeowners Ass’n, 194 Wis. 2d 62, 71, 533 N.W.2d 470 (1995). Here, when we
examine the 2020 judgment in its entirety together with the record, we find ample
reasons to sustain the court’s decision, as we now explain.

¶36 First, Murphy’s 2015 motion and supplemental motions to modify
maintenance alleged several changes in his circumstances. One notable alleged
change was that Murphy lost his Medicare billing privileges. As a result he lost
his primary source of income and his medical license was revoked in at least one
state. Although some fluctuations in income were foreseeable given Murphy’s
line of work, his on-and-off difficulties with his billing privileges and licensure
and resulting reduction of income was an unforeseen change in his financial
circumstances.

¶37 Second, the circuit court’s findings of fact demonstrate that both
parties experienced substantial and unforeseeable changes in their assets since the
divorce. For Murphy’s part, he had accrued significant debts that encumbered his

16
No. 2020AP1802

limited assets—largely due to his unwise investment choices. The court found
that, as a result of his poor financial decision making, the “unworkability” of the
system set up by the arbitrator, and the fact that Holland’s allocation of money
from the joint account was “not properly audited,” Murphy “found himself in
endless loops of arrearages from faulty data over which he had no control.” By
2020, he had been required to transfer all but one of his retirement accounts to
Holland to satisfy his maintenance arrearages. For Holland’s part, she had
acquired hundreds of thousands of dollars in assets from Murphy’s retirement
funds—a result that was not foreseeable at the time of divorce. Based on our
review of the record, the court’s findings about unforeseeable shifts in the parties’
retirement savings are not clearly erroneous.

¶38 For these reasons, we reject Holland’s argument that the parties
could have reasonably foreseen the changes in their financial circumstances when
the divorce judgment was entered. We conclude that the circuit court did not err
when it relied on these unforeseeable changes to determine that there had been a
substantial change in circumstances.

¶39 We now briefly address two arguments that Holland makes about
substantial changes in circumstances that we have not already directly addressed
in our discussion above. Holland argues that there was no substantial change in
circumstances because Murphy’s annual income at the time of the 2020 judgment
was $560,000—the same as when the circuit court issued the October 2019 order,
and higher than what it was at the time of the divorce. This argument is not
persuasive because it is founded on a myopic focus on income as the sole measure
of a party’s financial circumstances. Even if Holland is correct that Murphy’s
income was higher when the court made its determinations in 2020 than it was
when they were divorced, the parties’ relative savings are also a pertinent aspect of

17
No. 2020AP1802

their financial circumstances. Here, as discussed above, the court based its
substantial change decision on a comprehensive review of the parties’ income,
savings, and other considerations, and its decision was reasonable under the
circumstances.

¶40 Holland also argues that Murphy was himself to blame for many of
his financial woes—that he squandered his income on penny stocks when he
should have been using it to pay maintenance, resulting in the “endless loops of
arrearages,” and that his loss of retirement accounts to Holland “reflects his
repeated violations of his obligations” under the 2010 divorce judgment and the
2012 arbitration award. According to Holland, a “loss of assets due to
contemptuous conduct cannot justify a termination of maintenance.”

¶41 To the extent that Holland intends to argue that Murphy’s loss of
assets cannot constitute a substantial change in circumstances as a matter of law,
we reject that argument. Holland’s characterization of the underlying facts is not
fully consistent with the circuit court’s findings of fact, which, again, are not
clearly erroneous. And above all else, Holland cites no legal authority to support
the proposition that courts are obligated to consider who is at fault for a party’s
reduced financial circumstances as the determinative factor when deciding
whether there has been a substantial change of circumstances. Instead, her
argument appears to be more appropriately aimed at the court’s discretionary
determinations regarding the support and fairness objective of maintenance, which
we discuss below.

¶42 For all of these reasons, we conclude that the circuit court did not
erroneously exercise its discretion when it determined that there was a substantial
change in circumstances.

18
No. 2020AP1802

C. Warranting Termination of Maintenance

¶43 As discussed above, once the circuit court determines that there has
been a substantial change in circumstances, it then considers whether that change
warrants modification or termination of maintenance. When making this
determination, the circuit court “reconsiders” the factors enumerated in WIS. STAT.
§ 767.56(1c) and the dual support and fairness objectives of maintenance.
Kenyon, 277 Wis. 2d 47, ¶¶13, 39.

¶44 Here, the circuit court addressed each of the WIS. STAT. § 767.56(1c)
factors in support of its decision to terminate maintenance,9 and it also made other
findings that it determined were relevant to the parties’ circumstances and the dual
objectives of maintenance. See § 767.56(1c)(j) (permitting the court to consider
“such other factors as the court may in each individual case determine to be
relevant”). We now recount a few of the court’s findings, which provide
reasonable support for its decision.

¶45 The circuit court found that almost all of the parties’ marital debts
had been paid. At the same time, however, the court found that the parties were

9
Applying the WIS. STAT. § 767.56(1c) factors to the evidence presented, the circuit
court here made the following specific findings that we now summarize: (a) the parties had a
long-term marriage; (b) both were at or near retirement age and in good health; (c) initially, the
marital assets were equally divided, but both parties dissipated those assets; Holland had been
living a lavish lifestyle and had not kept up with her tax obligations and Murphy repeatedly made
bad investments; (d) both parties were well-educated; (e) in spite of Holland’s education, she
never tried to find employment after the divorce; as of 2020, both parties were at retirement age
so it was reasonable that they could choose not to work; (f) neither party was able to maintain the
standard of living at which they lived during the marriage; (g) any maintenance and any interest
thereon was deductible to Murphy and includible to Holland; (h) neither party raised any
evidence related to any mutual agreement made before or during the marriage; (i) the evidence
showed that Murphy paid his own way through medical school; however, given Murphy’s
rigorous hours, Holland contributed to his earning ability by taking care of the children and the
home.

19
No. 2020AP1802

unable to maintain the standard of living they had during their marriage. That
standard had been “built on a house of cards” and had been unsustainable post-
divorce. Following the divorce, Murphy continued to squander money through
bad investments, and Holland lived beyond her means and failed to keep up with
her own debts and taxes.

¶46 Regarding the system set up by the arbitrator, the circuit court found
that it had proven to be unworkable. It was unworkable in part because it was too
complicated, in part because it had not been properly audited, and in part because
both parties struggled to manage their finances.

¶47 Additionally, the circuit court found that Holland’s total control over
Murphy’s finances and the failures of the annual “true-up” process resulted in
Murphy “not receiving much of the money that he earned working thousands of
hours every year.” More specifically, Murphy found himself in “endless loops of
arrearages,” the result of which made his income insufficient to meet his living
expenses, much less to allow him to save for future events. In 2015, for example,
if Murphy had fully paid his maintenance obligations and arrearages, the court
found he would only have $22,798 in net disposable income for the year.10 This

10
Holland disputes this calculation as the product of “mathematical errors” by the circuit
court, but we are not persuaded that the court’s finding is clearly erroneous. Specifically, Holland
argues that the court “double counted” $44,253 that Murphy used to pay Holland’s share of
marital debts, and that $62,100 of the amount were arrearages that Murphy ultimately paid
through a transfer of assets rather than income. We have reviewed the record items Holland cites,
and it is not clear that they support Holland’s assertion of error, mathematical or otherwise. In his
response brief, Murphy provides a detailed counterargument regarding these line items, and
Holland does not address Murphy’s counterargument or the purportedly erroneous calculations in
any way in her reply brief. Accordingly, we deem her argument on that point conceded. See
United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578
(appellant’s failure to respond in reply brief to an argument made in response brief may be taken
as a concession).

20
No. 2020AP1802

amount would have been almost entirely absorbed by the mortgage payment on his
Door County house, and he would have had only $1,510 to cover “all other living
expenses not controlled by Ms. Holland.”

¶48 The circuit court found that Holland had received “substantial”
maintenance from Murphy since the parties divorced in 2010.11 Additionally, as
discussed above, a number of retirement accounts that had been awarded to
Murphy in the divorce were later transferred to Holland, and Holland had received
“other financial benefits” from Murphy as well.12 Holland had purchased a “high-
end” condominium in Mexico, where she was living “the retired life.” Although
she had already spent many of the funds she had received from Murphy,13 she had
$600,000 in retirement savings and would soon be eligible to receive social
security income of at least $1,400 per month. The court determined that, after
Murphy paid the additional $385,148.50 in arrearages that the parties stipulated he

11
The circuit court calculated the total amount of maintenance payments through 2019
as $1,689,434. Holland asserts that the correct calculation is $1,409,632. According to Holland,
the $234,244 difference was classified as maintenance on her taxes, but in fact it was a payment
by Murphy representing Holland’s share of the parties’ marital debts. We assume without
deciding that Holland’s description of this item is correct but, even so, Holland has not shown
that she was prejudiced by the court’s calculation of total maintenance payments. That is, we are
not persuaded that the court’s outcome would have been any different had it determined that
Holland received a total of $1,409,632 rather than $1,689,434 in maintenance payments since
2010. See WIS. STAT. § 805.18(2); Martindale v. Rupp, 2011 WI 113, ¶32, 246 Wis. 2d 67, 629
N.W.2d 698 (reversal may be unwarranted unless there is a reasonable possibility that an error
contributed to the outcome of the proceeding).
12
The circuit court calculated the value of the other financial benefits (not including the
retirement accounts) as $373,562. Holland does not challenge this finding.
13
Holland takes issue with the circuit court’s description of her lifestyle as “lavish.” She
asserts that, “[w]hen compared to Dr. Murphy’s spending, the facts at trial show that
Ms. Holland’s spending was not ‘lavish.’” Whether or not that comparison is apt, we agree with
Holland it is ultimately Holland’s decision how best to use her income. Nevertheless, we
conclude that the court did not err when it stated that some of her financial problems could be
alleviated if she scaled back on her expenditures. See Rohde-Giovanni, 269 Wis. 2d 598, ¶43.

21
No. 2020AP1802

owed, Holland “should be able to be self-supporting” with the social security
income, the retirement funds, an anticipated inheritance from her mother,14 and her
lower cost of living in Mexico.

¶49 Meanwhile, the circuit court found that, despite working multiple
full-time jobs, Murphy had “very limited assets.” The court found that he was
unable to save for his future retirement and pay maintenance at the same time.
The court concluded that, under the circumstances, Murphy “should not be
required to work multiple full-time jobs” to support Ms. Holland. After his
maintenance obligations were terminated, Murphy would have the option to
continue to work multiple jobs to build up funds for retirement, or to reduce his
hours if he chose to do so.

¶50 Having carefully reviewed the record, we conclude that the circuit
court did not erroneously exercise its discretion by terminating maintenance when
Murphy turned sixty-five. As discussed above, the court considered all of the
statutory factors that it determined to be relevant and made the above findings of
fact, which are not clearly erroneous. The court considered Holland’s need for
support when it considered her ability to be self-supporting. It considered fairness
to both parties when it considered their contributions to the marriage, their relative

14
Holland argues that the circuit court erred in taking into account her expectation that
she would be a beneficiary of her mother’s estate at some point in the future. Yet, the case
Holland cites in support of her argument is inapt. See Selchert v. Selchert, 90 Wis. 2d 1, 15, 280
N.W.2d 293 (Ct. App. 1979) (explaining that, in the context of property division, an expectation
that a party would receive a future inheritance was “too remote for consideration”). She argues
that there was no testimony in the record to support the court’s finding, but Murphy’s response
brief cites to such testimony. And again, even if we were to assume that the circuit court should
not have considered Holland’s potential inheritance when she found that Holland would be able
to support herself, we are not persuaded that the court would have reached any different outcome
had it not considered Holland’s own testimony on that point. See WIS. STAT. § 805.18(2);
Martindale, 246 Wis. 2d 67, ¶32.

22
No. 2020AP1802

savings, and the unfairness of forcing Murphy, through an unworkable system, to
continue to generate income in an attempt to maintain the unsustainable standard
of living that the parties enjoyed during the marriage. Thus, the decision reached
was a result 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.’” Rohde-Giovanni, 269 Wis. 2d 598, ¶18
(quoted source omitted).

¶51 We now address Holland’s arguments to the contrary that are not
already addressed above. Holland argues that the circuit court did not determine
that she “could be self-supporting at the marital standard of living” without
maintenance. Yet, as our supreme court has clarified, this standard is more
properly stated as “the lifestyle that the parties enjoyed in the years immediately
before the divorce and could anticipate enjoying if they were to stay married.”
Hefty, 172 Wis. 2d at 134 (emphasis in original) (citing LaRocque, 139 Wis. 2d at
36). Here, as discussed above, the circuit court determined that the marital
standard of living had been built on a house of cards and that neither party could
sustain that standard of living post-divorce. We discern no error of law or fact and
no erroneous exercise of discretion.

¶52 Holland also argues that the circuit court erred when it allowed
Murphy, through his motion to modify maintenance, to relitigate issues that he
could have but did not challenge through judicial review of the 2010 and 2012
arbitration awards. According to Holland, because the arbitrator ordered
maintenance based on a percentage of the parties’ total income, the “system” set
up by the arbitrator would accommodate ups and downs in income without the
need for further review. She contends that the court improperly allowed and relied
on testimony about “the history of the marriage, the relative contributions of the

23
No. 2020AP1802

parties to the marriage,” and other issues that were “previously litigated at the time
of the divorce.” As a result, Holland asserts, the court “essentially allowed”
Murphy to “retry the basis of the original indefinite maintenance award, the equal
division of all income, and the process established by the arbitrator” to ensure that
Murphy’s “income was accounted for and the substantial marital debts were paid.”

¶53 We reject this argument for at least two reasons. First, Holland did
not object to any such evidence on those grounds during the trial.15 State v.
Mercado, 2021 WI 2, ¶36, 395 Wis. 2d 296, 953 N.W.2d 337 (citing WIS. STAT.
§ 901.03(1) for the proposition that parties must preserve evidentiary objections
for purposes of appeal). Second, we disagree with the central premise of
Holland’s argument—that the termination of maintenance amounts to a
“relitigation” of issues decided in the original divorce judgment and the 2012
arbitration award. As the case law explains, “maintenance is always subject to
modification upon a showing of the requisite change in circumstances.” Nichols
v. Nichols, 162 Wis. 2d 96, 103, 469 N.W.2d 619 (1991); see also Hefty, 172 Wis.
2d at 138 (explaining that an award of indefinite maintenance at a percentage basis
“is not necessarily permanent” and may be adjusted as the circumstances warrant).
Indeed, if maintenance has not been previously modified, the court must consider
the facts at the time of the divorce to determine whether modification is warranted
based on a change of circumstances since the divorce. Here, the circuit court’s
determinations—that there had been a substantial change in circumstances and that
the changed circumstances warranted modification—were founded on post-

15
To the contrary, Holland solicited testimony about the history of the marriage and the
relative contributions of the parties and included pages of facts about those topics in her proposed
findings of fact and conclusions of law.

24
No. 2020AP1802

divorce events and did not constitute a relitigation of issues decided during the
divorce.

¶54 Holland also argues that the circuit court erred by terminating
Murphy’s requirement to pay maintenance at age sixty-five because he does not
have a present plan to retire. Contrary to Holland’s suggestion, the court’s
decision to terminate maintenance was not based on Murphy’s “hypothetical
retirement.” It was instead based on the court’s consideration of the WIS. STAT.
§ 767.56(1c) factors and the dual objectives of maintenance. Holland does not cite
any legal principle that prevented the court from considering Murphy’s need to
save for a future retirement as part of its reconsideration of the statutory factors
and objectives of maintenance.

¶55 Finally, Holland argues that, “[i]n trying to be fair to Dr. Murphy’s
retirement needs, the circuit court failed to consider fairness to Mrs. Holland.”
Holland contends that the evidence shows that Murphy was a principal architect of
both parties’ financial problems. She further contends that a significant cause of
Murphy’s dwindling retirement savings was that he had been ordered to transfer
retirement accounts to Holland to satisfy substantial maintenance arrearages and
contempt orders. She asserts that “[t]here is no Wisconsin case law which
supports a termination of an indefinite maintenance award” on the basis that “a
contemnor needs to save money to replace assets lost due to his noncompliance
with court orders.” She further argues that, having shared in “the debt incurred to
cover Dr. Murphy’s marital waste,” she should “continue to share in [his]
earnings,” which reflect her significant “contributions to his earning capacity.”
Holland cites several cases which stand for the general proposition that a court
must be fair to both parties and not leave one party with a windfall while the other

25
No. 2020AP1802

party is forced to live well below the previous marital standard of living they once
enjoyed.

¶56 Regardless of the merits of Holland’s arguments about fairness, she
advanced these same arguments during the circuit court proceedings and the court
ultimately rejected them. The circuit court, not this court, is in the best position to
weigh competing considerations about support and fairness, and the court did so
here after an exhaustive eight-day trial. Holland has not identified any legal error
in the court’s reasoning, nor has she persuaded us that the court erroneously
exercised its discretion. See Rohde-Giovanni v. Baumgart, 2003 WI App 136, ¶7
n.1, 266 Wis. 2d 339, 667 N.W.2d 718, affirmed by Rohde-Giovanni, 269 Wis. 2d
598 (discussing the standard of review of maintenance decisions).

¶57 To the extent that Holland makes any other arguments that we have
not explicitly addressed, we reject them under our standard of review. Boiled
down, Holland’s arguments reflect her dissatisfaction with the circuit court’s
determinations as to the weight and credibility of the evidence and the court’s
balancing of the WIS. STAT. § 767.56(1c) factors in light of the support and
fairness objectives of maintenance. Holland’s dissatisfaction with the court’s
decision is not grounds for this court to overturn it as an erroneous exercise of
discretion.

¶58 For all the above reasons, we conclude that the circuit court did not
erroneously exercise its discretion when it terminated maintenance.

II. Murphy’s Cross-Appeal Regarding Attorney Fees

¶59 In his cross-appeal, Murphy asserts that the circuit court erred when
it ordered him to contribute $102,505 toward Holland’s attorney fees in addition to

26
No. 2020AP1802

the $100,000 in fees he agreed to pay to purge his contempt. In most matters,
Wisconsin follows the “American Rule,” and parties are responsible for paying
their own attorney fees. See Estate of Kriefall v. Sizzler USA Franchise, Inc.,
2012 WI 70, ¶72, 342 Wis. 2d 29, 816 N.W.2d 853. However, WIS. STAT.
§ 767.241(1)(a) provides broad authority for attorney fee awards in actions
affecting the family. Pursuant to that statute, a circuit court can, “after considering
the financial resources of both parties,” order either party “to pay a reasonable
amount for the cost to the other party of maintaining or responding to an action
affecting the family and for attorney fees.” A circuit court may also award
attorney fees in a family law action based on the doctrine of “overtrial.”
Ondrasek v. Ondrasek, 126 Wis. 2d 469, 484, 377 N.W.2d 190 (Ct. App. 1985).

¶60 We review a circuit court’s attorney fee award for an erroneous
exercise of discretion. Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730, 747,
349 N.W.2d 661 (1984). We do not substitute our judgment for that of the circuit
court but instead examine the record in assessing whether the court’s
determination is based on the appropriate legal principles and the facts of record.
See Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 987-88, 542 N.W.2d 148
(1996).

¶61 Before addressing Murphy’s arguments, we provide additional
background that is relevant to the cross-appeal. As stated above, Holland and
Murphy both sought contempt sanctions against each other for allegedly violating
arbitration and circuit court orders related to maintenance. For her part, Holland
filed several motions for contempt, each one requesting “the costs and fees [she]
incurred due to [Murphy’s] contempt.”

27
No. 2020AP1802

¶62 Then, on July 9, 2019, during the sixth day of the trial, the parties
informed the circuit court that they had entered into an agreement resolving the
contempt motions. As Holland’s counsel explained on the record, the parties
stipulated that Murphy was in contempt and, further, that he could purge his
contempt, in part, by paying $100,000 of Holland’s attorney fees:

[T]he parties stipulate that Dr. Murphy is in contempt [as to
certain maintenance and arrearage payments]. The parties
stipulate that $100,000 is added to the [total arrearage
amount stipulated to by the parties,] bringing that total to
$385,148.50, and that $100,000 is for attorney fees and it is
not taxable to [Holland] or deductible to Dr. Murphy.
Accordingly, all other claims to attorney fees by both
parties are dropped ….

….

We also agreed that with respect to the contempt,
the sole remedy for the contempt is the $100,000 that’s
being added to the arrearage. There is no request for jail
time, there is no request for any other sanction. The only
sanction is the $100,000 and that’s it. So basically, it’s a
contempt and he purges the contempt by adding it to the
arrearage and that resolves it.

The parties’ agreement was later memorialized in a written stipulation. That
agreement provided, in pertinent part, that “[a]ll pending contempt motions are
resolved,” and that “[a]ll outstanding but unresolved claims for attorney’s fees are
resolved and fully incorporated into [the new arrearage balance].”

¶63 Months later, after the trial was over, the parties submitted proposed
findings of fact and conclusions of law. In her post-trial submission, Holland did
not ask the circuit court to order Murphy to pay additional fees for his
“contemptuous conduct.” She did, however, argue that she had incurred
significant legal fees as a result of Murphy’s “overtrial” and “unreasonable use of
the legal process,” and she asked the court to take those fees into account when

28
No. 2020AP1802

determining how the arrearage would be paid and “the term of maintenance going
forward.”

¶64 When the circuit court issued the 2020 judgment terminating
maintenance, the court also determined that it would order Murphy to make an
additional contribution toward Holland’s attorney fees. Specifically, the court
determined that Murphy’s unreliability with respect to maintenance payments
caused the “multiple court hearings and the termination of the arbitrator,” and that
“the legal fees incurred by Holland are substantial and will likely eat away at her
ability to live.” The court ordered Holland to “submit an accounting of fees
incurred not covered by the contempt stipulation” and indicated that it would
determine an amount that Murphy would have to pay directly to Holland’s
attorney each month.

¶65 Holland then submitted an itemized statement of her attorney fees.
Her submission purported to separate the fees that had been related to contempt
issues from those that had not, and requested approximately $218,000 in “Fees and
Costs not related to Contempt” that Holland had incurred since January 1, 2015.
After both parties submitted additional briefing, the circuit court explicitly found
that Holland’s attorney fees were reasonable. Nevertheless, the court explained
that, at the time it ordered attorney fees “as part of the judgment,” it had
“envisioned” that the fee award would cover only those fees incurred after the
parties’ July 9, 2019 stipulation. According to the court’s calculations, Holland
had incurred $102,505 in fees after July 9, 2019, and it ordered Murphy to pay that
amount. Although Murphy challenges the court’s authority to enter the award and
its exercise of discretion in doing so, neither party challenges the court’s
calculation.

29
No. 2020AP1802

¶66 We pause to observe that the circuit court did not expressly state
whether it was awarding the fees pursuant to its authority under WIS. STAT.
§ 767.241 or as a sanction for overtrial. On appeal, the parties disagree about the
basis for the court’s award. Although we proceed with the assumption that the
court made the fee award under § 767.241, we now briefly address Holland’s
arguments about overtrial.

¶67 Holland asserts that the circuit court awarded fees based on
Murphy’s overtrial. If accurate, this assertion would be significant. This is
because, when awarding fees under § 767.241(1)(a), a circuit court must consider
and make findings about the reasonableness of the fee, the receiving party’s need
for contribution, and the paying party’s ability to pay. Johnson v. Johnson, 199
Wis. 2d 367, 377, 545 N.W.2d 239 (Ct. App. 1996). By contrast, when awarding
fees based on overtrial, a circuit court is not required to consider the respective
parties’ need or ability to pay. See Ondrasek, 126 Wis. 2d at 484.

¶68 Here, upon our review of the record, we cannot conclude that the
circuit court based its fee award on the overtrial doctrine. Although Holland
mentioned overtrial in her post-trial submissions, the court did not expressly
invoke that doctrine in its judgment and subsequent order. Nor did it make
findings that would be required to support an award based on overtrial. See id.
(providing that the overtrial doctrine may be invoked in family law cases when
one party’s unreasonable approach to litigation causes the other party to incur
extra and unnecessary fees). The court mentioned that Murphy had been
“unreliable” with respect to maintenance payments, but it did not discuss his
approach to litigation.

30
No. 2020AP1802

¶69 We now turn to Murphy’s primary arguments regarding the
application of WIS. STAT. § 767.241. Murphy contends that the circuit court’s
order was contrary to the parties’ July 9, 2019 stipulation. He also contends that
the court did not make findings necessary to justify its order, and that the findings
it did make were clearly erroneous. We address these arguments in turn.

A. The Stipulation

¶70 Murphy argues that the circuit court was without legal authority to
award additional fees beyond the $100,000 in fees agreed to in the July 9, 2019
stipulation. He contends that, in resolving “all” claims for attorney fees, the
stipulation at issue unambiguously divested the court of its broad authority under
WIS. STAT. § 767.241(1)(a) to require Murphy to pay any additional amount of
Holland’s attorney fees. The meaning of a stipulation is generally a question of
law reviewed de novo. Jalovec v. Jalovec, 2007 WI App 206, ¶10, 305 Wis. 2d
467, 739 N.W.2d 834.

¶71 Attorney fees are a type of remedy available for contempt of court.
Benn v. Benn, 230 Wis. 2d 301, 311, 602 N.W.2d 65 (Ct. App. 1999). The
stipulation at issue in this case resolved the parties’ competing contempt motions,
and also addressed “all outstanding but unresolved claims for attorney’s fees.”
(Emphasis added.) The circuit court interpreted this language to mean that all
claims for fees incurred as of the date the parties entered this stipulation were
resolved,16 but not that the court was precluded from requiring Murphy to pay fees

16
Holland does not appeal the fee award and, therefore, she has not preserved any
challenge to the circuit court’s decision not to award any attorney fees that she had incurred up
through July 9, 2019.

31
No. 2020AP1802

that Holland incurred after that date. We agree with this interpretation. In the
context of debts, the word “outstanding” is commonly understood to mean debts
that have already been incurred—that is, those debts that “continue[]” to exist and
remain “unpaid.” Outstanding, https://www.meriam-webster.com/dictionary/
outstanding (last visited Nov. 30, 2021). We therefore agree that the stipulation
resolving “all outstanding but unresolved claims for attorney’s fees” did not
prevent the court from entering a fee award under § 767.241(1)(a).

¶72 Murphy cites Ceria M. Travis Academy v. Evers, 2016 WI App 86,
¶18, 372 Wis. 2d 423, 887 N.W.2d 904, for the proposition that parties to litigation
can, by stipulation, curtail the circuit court’s statutory authority. We have no
reason to disagree with this general proposition, but we conclude that it does not
apply here. To the extent that the parties intended to curtail the court’s authority
under WIS. STAT. § 767.241(1)(a), we would expect them to have used explicit
language that unambiguously expressed that intent. As discussed above, the
parties did not do so when they entered the stipulation at issue in this case.
Therefore, Murphy’s reliance on Ceria M. Travis Academy is inapt.

B. The Court’s Exercise of Discretion Under WIS. STAT. § 767.241(1)(a)

¶73 We now address Murphy’s argument that the circuit court
erroneously exercised its discretion. As stated above, when awarding fees under
WIS. STAT. § 767.241(1)(a), a court must consider the reasonableness of the fee,
the receiving party’s need for contribution, and the paying party’s ability to pay.
Johnson, 199 Wis. 2d at 377.

¶74 Here, the circuit court reviewed an itemized billing statement and
expressly found that the fees charged by Holland’s attorneys were “reasonable.”
Again, we review this determination for erroneous exercise of discretion.

32
No. 2020AP1802

Standard Theatres, Inc., 118 Wis. 2d at 747. We give deference to the circuit
court’s decision because it witnessed first-hand the quality of the service rendered
by counsel and is familiar with local billing norms. Id.; see also Tesch v. Tesch,
63 Wis. 2d 320, 334-35, 217 N.W.2d 647 (1974).17

¶75 Murphy makes various assertions in support of his argument that the
fees charged by Holland’s attorneys were unreasonable, but none are persuasive.
Among other things, Murphy takes issue with Holland’s use of a “team of
pedigreed attorneys,” the billing rate charged by the lead attorney and associates
on Holland’s case, and the amount of detail provided in the billing descriptions,
and he asserts that the total bill “shock[s] the conscious.” However, the circuit
court, having observed the eight days of trial, multiple status conferences between
trial dates, and the parties’ respective approaches to litigation, was not persuaded
by Murphy’s arguments. The court’s determination that Holland’s attorney fees
were reasonable is supported by the lengthy and fact-intensive proceedings in this
case as well as the billing information provided to the court. Murphy may
disagree with the court’s determination and Holland’s approach to litigation, but
those are not valid reasons to upset the court’s exercise of discretion in awarding
additional attorney fees.

17
On appeal, Murphy argues that appellate courts are in “as good a position as the trial
court to assess the reasonableness of the fees” and therefore should not give deference to a circuit
court’s reasonableness determination. To be sure, some earlier cases suggested that, as part of its
inherent supervisory power over the practice of law, our supreme court “may independently
review the reasonableness of an attorney fee award.” First Wis. Nat. Bank v. Nicolaou, 113 Wis.
2d 524, 537, 335 N.W.2d 390, 396 (1983); see also Herro, McAndrews & Porter, S.C. v.
Gerhardt, 62 Wis. 2d 179, 184, 214 N.W.2d 401 (1974); Theuerkauf v. Schnellbaecher, 64 Wis.
2d 79, 93, 218 N.W.2d 295 (1974); Thuot v. Fasting, 260 Wis. 79, 86, 49 N.W.2d 906 (1951);
Touchett v. E Z Paintr Corp., 14 Wis. 2d 479, 488, 111 N.W.2d 419 (1961). However, this is no
longer the law. In Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730, 747, 349 N.W.2d 661
(1984), our supreme court clarified that the correct standard of review is erroneous exercise of
discretion.

33
No. 2020AP1802

¶76 Murphy directs us to Kolupar v. Wilde Pontiac Cadillac, Inc., 2004
WI 112, ¶25, 275 Wis. 2d 1, 683 N.W.2d 58, which identifies factors that guide
circuit courts in assessing the reasonableness of attorney fees. See also WIS.
STAT. § 814.045.18 Although it may have been better practice for the court to
explain its reasonableness determination with specific reference to these factors,
we are nevertheless satisfied that the court appropriately exercised its discretion in
determining that the fees charged by Holland’s attorneys were reasonable.

¶77 As noted above, in addition to making a reasonableness
determination, the circuit court must also consider the needs of the party receiving
the attorney fee award and the other party’s ability to pay. Balaam v. Balaam, 52
Wis. 2d 20, 31-32, 187 N.W.2d 867 (1971) (explaining that an award of attorney
fees under WIS. STAT. § 767.225 is not warranted if “the [receiving party] is able
to pay [their] own attorney out of income or assets,” or if “the [paying party] does
not have the ability to pay”). The needs of the payee are ordinarily determined by

18
The factors set forth in Kolupar are summarized as: (1) the time and labor required,
the novelty and difficulty of the questions involved, and the skill requisite to perform the legal
service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer; (3) the fee customarily charged in the
locality for similar legal services; (4) the amount involved and the results obtained; (5) the time
limitations imposed by the client or by the circumstances; (6) the nature and length of the
professional relationship with the client; (7) the experience, reputation, and ability of the lawyer
or lawyers performing the services; and (8) whether the fee is fixed or contingent. Kolupar v.
Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶25, 275 Wis. 2d 1, 683 N.W.2d 58. We note that
the standard stated in Kolupar has been changed by statute. WISCONSIN STAT. § 814.045(1),
enacted in 2011, says that “in any action involving the award of attorney fees … or involving a
dispute or the reasonableness of attorney fees, the court shall, in determining whether to award
attorney fees and in determining whether the attorney fees are reasonable,” consider a list of
fifteen factors, which are similar to but not identical to the factors noted in Kolupar.

To the extent that Murphy argues that it was unreasonable for the circuit court to award
Holland attorney fees because Murphy was the prevailing party, we expressly reject that
argument. WISCONSIN STAT. § 767.241 provides that a fee award may be made “to either party,”
and does not limit the court’s authority to award fees only to those parties that have prevailed.

34
No. 2020AP1802

the receiving party’s assets and income, earning capacity, age, health, special
needs and the special needs of the children, if any, and their customary station in
life. Hirth v. Hirth, 48 Wis. 2d 491, 180 N.W.2d 601 (1970). The ability of the
other spouse to pay is usually determined by their income, assets, debts, age, and
health. Id.

¶78 In this case, the circuit court expressly determined that Holland had
a need for Murphy to contribute toward her attorney fees. As the court explained,
“the legal fees incurred by Holland are substantial and will likely eat away at her
ability to live.” Despite Murphy’s assertions to the contrary, the obvious
interpretation of this finding is that, now that maintenance has been terminated,
Holland would be at risk of not being able to support her living expenses if she
had to use her savings to pay all of her “substantial” attorney fees.

¶79 To the extent that Murphy is arguing that the record does not support
this finding or that it contradicts other parts of the circuit court’s judgment, we
disagree. We are satisfied that the court considered Holland’s age, health, prior
income, assets, earning capacity, and “customary station in life” before ordering
Murphy to pay a portion of her attorney fees. Indeed, the court made findings on
those subjects in other sections in the 2020 judgment and, as stated above, the
court’s findings in its written judgment are supported by the record. We conclude
that the circuit court did not err when it determined that Holland needed assistance
paying her attorney fees.

¶80 By contrast, the circuit court did not make any express finding
regarding Murphy’s ability to contribute toward Holland’s attorney fees. “Failure
by the [circuit] court to make specific findings of fact is not necessarily reversible
error.” Jacobson v. American Tool Companies, Inc., 222 Wis. 2d 384, 394-95,

35
No. 2020AP1802

588 N.W.2d 67 (Ct. App. 1998) (citing Hochgurtel v. San Felippo, 78 Wis. 2d 70,
86, 253 N.W.2d 526 (1977)). On the contrary, “[w]e assume the court implicitly
made those findings necessary to support its decision, and we accept those implicit
findings if they are supported by the record.” Avon v. Oliver, 2002 WI App 97,
¶23, 253 Wis. 2d 647, 644 N.W.2d 260. When a court fails to expressly make a
necessary finding, we will affirm the court’s decision if the necessary findings are
clearly supported by the record, reverse the court’s decision if a necessary finding
is not so supported, or remand to the court to make additional findings. Jacobson,
222 Wis. 2d at 394-95 (citing Chuck Wagon Catering, Inc. v. Raduege, 88 Wis.
2d 740, 749, 277 N.W.2d 787 (1979)).

¶81 Here, it is not evident from the circuit court’s decision that it actually
considered Murphy’s ability to pay. Moreover, there is some tension—at least on
the surface—between the findings the court made in support of its decision to
terminate maintenance and a hypothetical finding that Murphy had the ability to
contribute $102,505 toward Holland’s attorney fees. As discussed above, the
court determined that, despite annual income of $560,000 at the time of the
divorce, Murphy had “very limited assets” which were encumbered by significant
debts, and that he would be unable to save for retirement and, at the same time,
continue to make maintenance payments. Moreover, shortly after the court issued
the 2020 judgment but before the court issued its subsequent order on fees,
Murphy represented that he had once again lost his Medicare billing privileges,
which may have affected his ability to generate income.

¶82 In so stating, we do not suggest that the circuit court could not have
reasonably determined that Murphy did have an ability to pay. Nor do we suggest
that the court could not do so on remand. We merely conclude that, under the
circumstances, absent any express finding from the court, and given the potential

36
No. 2020AP1802

tension with the findings that the court did make, we are unable to conclude that
the circuit court implicitly found that Murphy had an ability to pay.

¶83 For all of these reasons, we reverse the portions of the 2020
judgment and the subsequent order pertaining to the attorney fee award and
remand to the circuit court for further consideration of the attorney fee issue. In
the interest of assisting the court in streamlining the proceedings on remand, we
offer the following guidance. Nothing in this opinion should be read to preclude
the court from awarding $102,505 (or another amount) in attorney fees. Nor
should this opinion be read to circumscribe the court’s authority to conduct further
proceedings as it may see fit to resolve the attorney fee issue. Instead, the court
may consider whether, in its judgment, it would be appropriate to take new
evidence or to decide this issue based on evidence and submissions that are
already in the record, taking argument from the parties on this point as it
determines is appropriate.19

CONCLUSION

¶84 In sum, we reverse the portions of the circuit court’s 2020 judgment
and the subsequent order pertaining to the attorney fee award and remand to the
circuit court for further consideration of the attorney fee issue and to make any
findings necessary to support its decision. All other aspects of the circuit court’s
judgment and order are affirmed.

19
To the extent that either party attempts to make any other arguments on appeal, we
reject them as undeveloped. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct.
App. 1992).

37
No. 2020AP1802

By the Court.—Judgment and order affirmed in part; reversed in part
and cause remanded with instructions.

Not recommended for publication in the official reports.

38