## Facts

- Cora Lee Scheuer and Bradley Scheuer were married for about 25 years.
- Cora filed for divorce in 2003.
- Bradley worked for Andersen Windows for about 23 years and earned roughly $20 per hour.
- Cora earned substantially less, about $12.70 per hour.
- During the divorce, the circuit court entered a temporary maintenance order requiring Bradley to pay Cora $300 per month.
- A few months after the temporary order, Bradley was terminated from Andersen Windows for workplace misconduct.
- After being fired, Bradley obtained new employment paying about $11.74 per hour.
- At the final divorce judgment, the circuit court imputed to Bradley an earning capacity comparable to his pre-termination Andersen wages (about $20.13 per hour, approximately $41,875 annually), reasoning he would still be earning at that level but for his misconduct.
- The circuit court ordered limited-term maintenance for 15 years, structured in three five-year steps with increasing payments of $400, then $500, then $600.
- Bradley appealed from the judgment of divorce and the order denying reconsideration, challenging both the imputed earning capacity and the amount and duration of maintenance.

## Issues

1. Whether the circuit court erroneously exercised its discretion by calculating maintenance using Bradley’s imputed earning capacity, rather than his lower post-termination wages, when his income reduction followed termination for misconduct.
2. Whether the circuit court erroneously exercised its discretion in ordering a 15-year, stepped maintenance award given the length of the marriage and the parties’ earnings.

## Decision

- The Wisconsin Court of Appeals affirmed the judgment of divorce and the order denying reconsideration.
- The court held the circuit court could base maintenance on earning capacity where the payor’s reduced income resulted from the payor’s own voluntary conduct, including misconduct leading to termination.
- The court rejected the argument that the circuit court had to make formal “shirking” findings or use specific terminology before imputing income.
- The court held the circuit court was not required to obtain vocational or other expert testimony to impute earning capacity when the record supported the finding (including the payor’s lengthy work history and prior wage rate).
- The court concluded the stepped, limited-term maintenance award fell within the circuit court’s discretionary authority in light of the long marriage and the parties’ income disparity.

## Legal Principles

- Maintenance may be based on earning capacity instead of actual current earnings when the court finds the payor’s reduced income is the result of voluntary conduct, including employment misconduct that causes job loss.
- A court may apply the substance of the “shirking” doctrine without using that label, so long as it makes findings showing the income reduction is self-caused and imputation is warranted.
- Expert vocational testimony is not a prerequisite to imputing earning capacity when the payor’s employment history, prior wage rate, and circumstances of the income reduction support a reasonable earning-capacity determination.
- Maintenance awards are reviewed for erroneous exercise of discretion; an award will be upheld when the circuit court considers the statutory factors and explains a rational basis consistent with maintenance’s support and fairness objectives.
- In a long-term marriage with a marked earnings gap, a limited-term maintenance award with a graduated payment structure may be a reasonable discretionary choice.

## Conclusion

In re the Marriage of Scheuer v. Scheuer affirmed a circuit court’s decision to impute the husband’s prior earning capacity for maintenance purposes after he was fired for misconduct and took a lower-paying job, and it upheld a 15-year stepped maintenance award as a proper exercise of discretion given the length of the marriage and the parties’ unequal earnings.


In re the Marriage of Scheuer v. Scheuer, 711 N.W.2d 698 (2006)