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Petition for Review - Brief of appellant
Case no: 23AP1569
Case name: Daniel S. Buck v Emily W. Buck
Court of Appeals District: IV
Panel: JoAnne Kloppenburg, Brian Blanchard, Jennifer Nashold.
Opinion author: Per curiam
Petition filing attorneys: Carlton Stansbury and Colin Drayton
Law firm / agency: Burbach & Stansbury
Circuit Court: Dane County
Judge: Stephen Ehlke
Introduction
Wisconsin has a significant population at or approaching retirement age. Indeed, 26.2% of Wisconsin’s population is aged 45-64 and 15.8% is aged 65-84. Statistically, many of these couples will divorce as they approach retirement or once they are in retirement.2 Such cases raise unique issues.
When can the payor of “maintenance” retire? Can maintenance continue after the payor retires? It is an easy question when considered by a court at the time of retirement. In that snapshot in time each party’s current income and expenses can be considered, along with the need and fairness objectives of maintenance.
But more problematic is a court prospectively guessing when a payor of maintenance will retire and then prospectively terminating maintenance at that point. In that case the payor can either keep working and maintain 100% of the income stream created during the marriage. Such a result frustrates the settled case law that marriage is an economic partnership and that one party should not be able to leave the marriage with all of the income stream accumulated during the partnership. When a homemaker-spouse contributes to the working spouse’s high income during their marriage, the income stream is a vital tool, in addition to property division, to compensate the homemaker-spouse and share for the contributions made during the partnership.
In the coming tsunami of older adults and baby-boomers retiring and divorcing, this flawed logic of predicting a future cutoff date for maintenance because a payor might retire creates a torrent of decisions that are anathema to decades of Wisconsin case law. A wave of appellate litigation is sure to follow these lopsided results.
For future divorce cases, this petition presents two issues of paramount importance: (1) how does fundamental fairness and basic public policy, as enshrined in decades of case law, allow a court to predict a payor’s potential future retirement date and use that date to arbitrarily end spousal support regardless of whether the payor actually retires or keeps working; and (2), can a circuit court base a current maintenance amount without making a finding of fact as to the payor’s current income?
The stakes are quite clear. At risk is Wisconsin’s fundamental concept of marriage as a marital partnership, and spousal support as a meaningful way to fairly compensate a homemaker when the other spouse leaves the marriage with their high income stream intact.
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