Richard A. Larson v. Laurie A. Larson

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.
August 25, 2020
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. 2019AP373 Cir. Ct. No. 2014FA30

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE MARRIAGE OF:

RICHARD A. LARSON,

PETITIONER-RESPONDENT,

V.

LAURIE A. LARSON,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Brown County:
JOHN ZAKOWSKI, Judge. Affirmed in part; reversed in part and cause
remanded with directions.

Before Stark, P.J., Hruz and Seidl, JJ.

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP373

¶1 PER CURIAM. Laurie Larson appeals a post-divorce order,
arguing that the circuit court erred by amending an earlier maintenance order and
modifying a maintenance payment schedule. For the reasons discussed below, we
agree. Therefore, we reverse that part of the order. Laurie also challenges that
part of the order denying her motion for contempt against Richard Larson. We
reject her arguments related to the contempt determination and, therefore, affirm
that part of the order.

BACKGROUND

¶2 In January 2014, Richard petitioned for a legal separation from
Laurie after almost nine years of marriage, and he later converted the matter to a
petition for divorce. During the pendency of the divorce action, the court
commissioner signed a stipulated order under which Richard was required to pay
Laurie $1500 in temporary monthly maintenance, to commence August 21, 2014.
Pursuant to that same order, Laurie was required to make monthly mortgage
payments on the marital residence. On February 9, 2015, the temporary
maintenance part of the order was suspended by the court commissioner on
stipulation of the parties.

¶3 The divorce judgment was entered in October 2015. Relevant to this
appeal, the circuit court did not order maintenance at that time but, rather, retained
“maintenance jurisdiction” for twenty-four months from the date of the divorce.
In August 2016, Laurie filed a motion and affidavit to show cause and to “change
maintenance,” claiming Richard owed her approximately $9000 under the court
commissioner’s temporary maintenance order.

¶4 After a hearing on Laurie’s motion, the circuit court noted that
between the time when the divorce petition was filed and when the divorce

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judgment was entered, Richard changed jobs, resulting in a reduction of his
monthly gross income from $12,000 to just over $4400. The court further noted
that at the time the divorce judgment was entered it had held the issue of
maintenance open in order to determine if Richard’s income would increase. At
the time of the December 2016 motion hearing, his monthly gross income had
increased to $6500. Laurie’s monthly gross income as a long-time teacher had
remained at approximately $4900.

¶5 In an order entered March 30, 2017, the circuit court concluded that
maintenance payments to Laurie were appropriate based on the increase in
Richard’s income and the court’s determination that a condominium owned by
Richard had been undervalued at the time of the divorce judgment. Noting that
maintenance and property division are “intertwined,” the court decided there was
an equitable basis for ordering maintenance in the amount of $500 per month for
eighteen months—from June 2017 until December 2018—with the aggregate
amount reflecting the $9000 in temporary maintenance Richard should have paid
pursuant to the court commissioner’s order. The court added that an approximate
53/47 ratio of net disposable monthly income between the parties was fair because
Richard had “been the [primary] breadwinner who made the mortgage payments
during the course of the marriage.” The court also ordered Richard to provide
Laurie with a copy of his 2014 tax returns and pay her half of his 2014 tax refund.

¶6 In February 2018, Richard filed a motion to terminate maintenance,
asserting that the March 2017 maintenance order was based upon the circuit
court’s mistaken belief that Laurie had made certain mortgage payments during
the pendency of the divorce action. Specifically, Richard claimed he paid in
excess of $12,000 in mortgage payments during the pendency of the temporary
order which provided that those payments were Laurie’s responsibility. Laurie

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opposed the motion to terminate maintenance and filed a “motion for contempt
and other relief,” claiming Richard had failed to provide his 2014 tax returns or
make eight months of the ordered maintenance payments. Because the 2014 tax
refund amount Laurie received from Richard was markedly less than the amount
Richard’s counsel had earlier suggested it would be, she sought to verify the
amount.

¶7 After a hearing, the circuit court denied Laurie’s contempt motion
and determined it would no longer “continue to order the 2014 tax returns.” The
court implied that verification of the amount of the 2014 tax refund was no longer
necessary as the court “offset it” based on the fact that Richard made mortgage
payments that Laurie was ordered to make. Although the court denied Richard’s
motion to terminate maintenance, it modified the maintenance payment schedule,
ordering Richard to pay $500 in monthly maintenance “effective December 1,
2018 and continuing until January 31, 2020.” Laurie now appeals.

DISCUSSION

¶8 As an initial matter, Laurie asserts that the circuit court lacked
subject matter jurisdiction to enter the order at issue on appeal. We disagree. In
recognition of the broad nature of subject matter jurisdiction, our supreme court
has stated that in Wisconsin, “no [circuit] court is without subject matter
jurisdiction to entertain actions of any nature whatsoever.” Village of
Trempealeau v. Mikrut, 2004 WI 79, ¶8, 273 Wis. 2d 76, 681 N.W.2d 190. While
the failure to comply with a statutory mandate pertaining to the exercise of subject
matter jurisdiction may result in a loss of the circuit court’s competency to
adjudicate a particular case before the court, a defect of competency is not
jurisdictional. Id., ¶9. Although we reject Laurie’s challenge to the court’s

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subject matter jurisdiction, we nevertheless agree that the court erroneously
exercised its discretion by amending the March 30, 2017 order and modifying the
payment schedule established therein.

¶9 The circuit court construed Richard’s motion as a request for
reconsideration of its order awarding maintenance to Laurie based on newly
discovered evidence—specifically, the evidence that Richard had made mortgage
payments that were Laurie’s responsibility. Citing WIS. STAT. § 805.17(3)
(2017-18),1 Laurie argues that such a motion was time-barred. That statute
provides, in relevant part: “Upon its own motion or the motion of a party made
not later than 20 days after entry of judgment, the court may amend its findings or
conclusions or make additional findings or conclusions and may amend the
judgment accordingly.” Sec. 805.17(3). That statute, however, applies following
a “[t]rial to the court.” Sec. 805.17. Because the record does not include a
transcript of the hearing underlying the March 30, 2017 order, it is unclear
whether evidence or sworn testimony was taken during the proceeding and, thus,
whether that statute applies to the instant matter.

¶10 In any event, the purported “new evidence” was not new; therefore,
Richard’s argument is claim precluded. The doctrine of claim preclusion exists to
prevent endless litigation. Under the doctrine, “a final judgment is conclusive in
all subsequent actions between the same parties as to all matters which were
litigated or which might have been litigated in the former proceedings.” Lindas v.
Cady, 183 Wis. 2d 547, 558, 515 N.W.2d 458 (1994) (emphasis added). The

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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elements of claim preclusion are traditionally stated as “(1) an identity between the
parties or their privies in the prior and present suits; (2) an identity between the
causes of action in the two suits; and (3) a final judgment on the merits in a court
of competent jurisdiction.” Wisconsin Pub. Serv. Corp. v. Arby Const., Inc.,
2012 WI 87, ¶35, 342 Wis. 2d 544, 818 N.W.2d 863 (citation omitted).

¶11 The elements of claim preclusion are present here. There is an
identity between the parties in the prior and present litigation; both the prior and
present litigation involve maintenance; and the amount of maintenance payments
was determined by the March 30, 2017 order. Richard knew (or should have
known) even before the divorce judgment was entered that he had made mortgage
payments when Laurie had been ordered to do so. Thus, Laurie’s purported
failure to make mortgage payments pursuant to the court commissioner’s
temporary order does not constitute “new” evidence, and a challenge to
maintenance based on those payments could have been made at the hearing
preceding the March 2017 order. As the circuit court acknowledged in the order
presently on appeal: “There was no mention of any mortgage payments made by
Richard in the [March 30, 2017] decision. The time for him to raise the payments
of the mortgage would have been at our hearing in December, 2016.” Richard is
claim precluded from seeking a modification or termination of maintenance based
upon the mortgage payments he previously made. The court therefore erred by
amending its earlier order on this basis.

¶12 We also conclude the circuit court erred by modifying the
maintenance payment schedule. A request for a change in a maintenance award
rests within the circuit court’s discretion. Haeuser v. Haeuser, 200 Wis. 2d 750,
764, 548 N.W.2d 535 (Ct. App. 1996), abrogated on other grounds by
Kruckenberg v. Harvey, 2005 WI 43, 279 Wis. 2d 520, 694 N.W.2d 879. “A

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circuit court erroneously exercises its discretion if it makes an error of law or
neglects to base its decision upon facts in the record.” King v. King, 224 Wis. 2d
235, 248, 590 N.W.2d 480 (1999). A modification to maintenance can be made
“only upon a positive showing” of a substantial change in the parties’ financial
circumstances, a burden borne by the party seeking modification. Haeuser, 200
Wis. 2d at 764.

¶13 When determining whether there has been 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. Here, Richard’s
motion to modify maintenance did not allege a substantial change in
circumstances since the most recent maintenance order. Rather, the motion was
based on the mortgage payments he made before that order. Because Richard did
not allege a qualifying change in circumstances, the circuit court erroneously
exercised its discretion when it modified the maintenance order based upon
evidence that could have been presented earlier. We therefore reverse the court’s
order and remand the matter with directions to reinstate the March 30, 2017
maintenance order, thus also requiring Richard to turn over his 2014 tax returns.

¶14 Laurie also asserts that the circuit court erred by refusing to find
Richard in contempt. A circuit court’s use of its contempt power is reviewed for
an erroneous exercise of discretion. See City of Wis. Dells v. Dells Fireworks,
Inc., 197 Wis. 2d 1, 23, 539 N.W.2d 916 (Ct. App. 1995). Although the proper
exercise of discretion contemplates that the circuit court explain its reasoning,
when the court does not do so, we may search the record to determine if it

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supports the court’s discretionary decision. See Randall v. Randall, 2000 WI App
98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737.

¶15 Here, Laurie has not developed an argument showing that the circuit
court erroneously exercised its discretion when denying her contempt motion.
Although it was improper for the court to consider Richard’s mortgage payments
as grounds for amending the March 2017 order or modifying the maintenance
schedule, Laurie has not established how it was improper for the court to consider
those payments in weighing the equity of a contempt finding. Because the record
supports the court’s discretionary decision, Laurie’s challenge to the denial of her
contempt motion fails.

By the Court.—Order affirmed in part; reversed in part and cause
remanded with directions.

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

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