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Schmitt v. Schmitt2/8/2001
he statute do not appear to be weighted, implying that the weighting will be done by the circuit court." Id. at (Prosser, J., concurring). We conclude that the trial court did not err in considering the "separate lives" evidence under subsection (10) and choosing how much weight to place on that factor.
. Arnold disagrees with the trial court's finding that he is slightly underemployed. While we acknowledge that Arnold testified that he could not work more than thirty hours per week due to his back problems, the court found that his physical condition was no worse than the usual problems of a person his age, and that he could have attempted to find a second job. Arnold testified that he did not even consider getting a second job. It is not unreasonable for the trial court to expect him to attempt to seek additional employment within his abilities. As the Bahr court noted, " hen the dependent party is capable of accepting reasonably available, gainful employment, we do not believe the dependent party can avoid such employment and simply rely upon the supporting party to provide a standard of living for the dependent party comparable to that enjoyed during the marriage." Bahr, 107 Wis. 2d at 83.
. Arnold also argues that it was improper for the trial court to consider whether Kathleen possessed an incentive to continue to work hard. The court stated: "I've been here long enough to know that when a court makes a decision in any area, especially in the area of maintenance ... you do have to give the person who is paying some sort of incentive to continue to work as hard as they're working in order that they have to pay anything." Perhaps this is not a statutory factor, but it is a practical concern that plays into the fairness factor. The Bahr court observed as follows:
In considering the amount of any maintenance award, the court should ensure that the award to the dependent party should not be so great a portion of the supporting party's income so as to thwart the supporting party's incentive to be productive and advance in the job market. The reasonableness of the dependent party's taking employment and the impact of the maintenance award on the supporting party's job incentive are factors which must be weighed along with the other statutory factors. Bahr, 107 Wis. 2d at 83-84 (emphasis added).
Kathleen is working many extra hours, while Arnold is choosing to work only thirty hours a week. The court reasoned that it would not be fair, absent other factors, to order her to pay a substantial amount of maintenance, and we conclude that it did not erroneously exercise its discretion in this regard.
. Arnold further asserts that the trial court engaged in gender discrimination in its decision as reflected in "the one-sided nature of the court's thinking in this case." The court specifically disavowed gender bias. Simply because Kathleen was not ordered to pay as much maintenance as Arnold requested does not mean that the court was biased against him based on his gender. The court concluded that this was not a "traditional" marriage, where one party develops a stream of income as the principal wage earner, while the other contributes to the marriage primarily as a homemaker. See LaRocque, 139 Wis. 2d at 38. Here, Kathleen was the primary homemaker for approximately sixteen years of the marriage, and then she worked at Shopko for twenty years. She also began a career in real estate sales, which she is now doing full-time, working seventy hours per week and earning a substantial income. The court found that Kathleen's real estate career developed while the parties were essentially living separate lives. In the court's view, these circumstances simply did not me
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