Lemke v. Lemke, 2012 WI App 96 (Ct. App. 2012)
Jul 12, 2012OUTCOME: Reversed circuit court's decision to terminate maintenence
The Court of Appeals reversed and remanded for further proceedings the order rendered by the Honorable Kenneth W. Forbeck (Rock County Circuit Court). Ricky and Lisa were married in 1983. Except for ... a very short time when Lisa worked at a fast food restaurant, she did not work outside the home. In 2005, shortly after the divorce was filed, Lisa and her children were involved in a serious automobile accident. The parties were divorced in February 2007. They stipulated all issues except the questions of child support and maintenance. Judge Roethe awarded significant family support for three years. Just before the three-year period passed, Lisa moved to extend the family support order as indefinite maintenance. By this time, Judge Roethe had retired and Judge Forbeck was assigned to the case. Judge Forbeck heard the motion in 2011, and concluded that Lisa's family support should terminate with no maintenance award. Lisa appealed. The Court of Appeals found that Lisa was entitled to indefinite maintenance as Ricky failed to provide medical evidence which challenged Lisa's medical evidence. The only vocational evidence the Court of Appeals determined to be relevant and credible was Kevin Schutz's testimony that Lisa was unable to sustain employment and that this inability was permanent. Michele Albers, the witness Judge Forbeck found credible, considered Lisa an able-bodied person, capable of unrestricted activities with the exception of being a nurse. The Court of Appeals determined that Albers' opinion as to Lisa's earning capacity was without substance because it contradicted the only medical testimony. With no testimony from which Judge Forbeck could reasonably find facts countering Schutz's testimony, the only evidence was Schutz's opinion that Lisa had no earning capacity. The Court of Appeals noted that though appellate interference with a trial court's credibility determination is rare, Judge Forbeck's credibility determination as to Schutz's testimony was clearly erroneous. As a result, they reversed, with instructions to set indefinite maintenance in an amount consistent with the cases they cited, the statutory factors found in Wis. Stat. § 767.56, the twin concepts of need and fairness, and the rationale of LaRocque.
