Mahmoud Adel Sharaf v. Amanda Kay Sharaf

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.
September 4, 2019
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. 2018AP735 Cir. Ct. No. 2016FA540

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE MARRIAGE OF:

MAHMOUD ADEL SHARAF,

PETITIONER-APPELLANT-CROSS-RESPONDENT,

V.

AMANDA KAY SHARAF,

RESPONDENT-RESPONDENT-CROSS-APPELLANT.

APPEAL and CROSS-APPEAL from a judgment and an order of
the circuit court for Eau Claire County: MICHAEL A. SCHUMACHER, Judge.
Judgment affirmed in part; reversed in part, and cause remanded for further
proceedings. Order affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.
No. 2018AP735

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).

¶1 PER CURIAM. Mahmoud and Amanda Sharaf divorced in 2017.1
Mahmoud now appeals from the divorce judgment, as well as from a post-divorce
order clarifying the judgment. Mahmoud argues that the circuit court erred, in
several respects, in its interpretation of the parties’ prenuptial agreement (the
Agreement). Mahmoud also argues that the court erroneously exercised its
discretion in setting his child support obligation.

¶2 Amanda cross-appeals from the judgment and order. She argues that
the circuit court erroneously exercised its discretion in determining the placement
schedule for the parties’ minor children.

¶3 We affirm the circuit court in all respects, save one. Namely, we
conclude that the circuit court’s determination that the Agreement did not preclude
an award of attorney’s fees was in error. Accordingly, we reverse the attorney’s
fees portion of the judgment, and we remand for further proceedings on that
limited issue.

BACKGROUND

¶4 The parties were married on December 27, 2013. One month prior,
they had entered into the Agreement. Neither Mahmoud nor Amanda had been
previously married. They have two children: twin boys born in 2015.

1
For the sake of clarity, we refer to the parties individually by their first names for the
remainder of this opinion.

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¶5 In 2016, the parties filed for divorce. On November 9, 2017, the
divorce was granted. At the time of the divorce, Mahmoud was forty-one years
old and employed as a cardiologist in Sioux City, Iowa. His base salary was
$525,000 per year, with approximately $100,000 in additional compensation
available to him based on his on-call schedule. Amanda was thirty-nine years old
and a homemaker residing in Eau Claire, Wisconsin. She had previously been
employed as a pharmaceutical sales representative earning approximately
$100,000 per year. Mahmoud and Amanda agreed that Amanda would not work
outside of the home after the birth of their children.

¶6 Neither party disputed the validity or enforceability of the
Agreement. However, they disputed the interpretation of several provisions within
the Agreement. Primarily, this dispute centered on Amanda’s argument that she
was entitled to temporary maintenance and other financial support during the
pendency of the divorce proceedings.

¶7 Specifically, Amanda requested monthly payments of “family
support in the amount of $13,044.00 while this matter is pending.” Moreover, she
requested that Mahmoud deposit $5000 with her attorney’s law firm as a retainer
for legal services. Over Mahmoud’s objection that these sums would violate the
Agreement, the family court commissioner entered a temporary order that awarded
Amanda $11,100 per month. This figure was comprised of $6600 for child
support and $4500 for maintenance. An amended temporary order subsequently
ordered Mahmoud to “provide attorney’s fees in an amount equal to the amounts
paid by [Mahmoud] to [his attorneys].”

¶8 After a final hearing, the circuit court entered a judgment granting
the parties a divorce. The judgment required Mahmoud to pay Amanda $75,000

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per year in maintenance for a period of five years, per the Agreement. The court
declined to offset any of the family support payments or attorney’s fees Mahmoud
paid to Amanda during the pendency of the divorce against the maintenance
award. In addition, the court rejected Mahmoud’s argument that Amanda had
forfeited her right to any maintenance by seeking more money than was provided
for under the terms of the Agreement.

¶9 The judgment also required that the parties’ marital residence be
listed for sale. Regarding that sale, the circuit court ordered that “[p]ursuant to the
[Agreement], the parties will share responsibility for renovation costs equally …
the parties will equally share the responsibility for mortgage payments and utilities
associated with the marital residence until sold.”

¶10 The circuit court’s judgment adopted the physical placement
schedule for the parties’ children that had been in effect since May of 2017.
Specifically, the court ordered that the children would “spend one week with
Mahmoud and his parents in Iowa and then spend 2 weeks in Eau Claire with
[Amanda,]” on a continuous, alternating basis.

¶11 As to child support, the circuit court ordered Mahmoud to pay $7889
per month. The court relied on the child support guidelines2 in ordering this
amount, stating “this Court cannot find by the greater weight of the credible
evidence that use of the 25 percent standard is unfair to the children or to any of
the parties.”

2
See WIS. ADMIN. CODE ch. DCF 150 (June 2019).

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¶12 Mahmoud subsequently moved the circuit court for “[c]larification
as to whether [his] maintenance obligation is to be paid via monthly installments
or an alternative method.” As a result, the court entered a post-divorce order
stating “the language in [the Agreement] provides for an annual maintenance
payment of $75,000.00 and not a monthly obligation.”

¶13 Mahmoud now appeals, challenging, as more fully explained below,
those aspects of the circuit court’s decision related to its interpretation of the
Agreement and child support payments. Amanda cross-appeals, challenging the
court’s decision regarding physical placement of the parties’ children.

DISCUSSION

I. Mahmoud’s Appeal

A. Interpretation of the Agreement

¶14 A prenuptial agreement is a contract, and therefore its interpretation
presents a legal question which we review de novo. See Steinmann v. Steinmann,
2008 WI 43, ¶21, 309 Wis. 2d 29, 749 N.W.2d 145. Our primary goal in
interpreting a contract is to determine and give effect to the intent of the parties.
Id. Accordingly, when the language of a contract is unambiguous, we will apply
its literal meaning. Id. Further, when interpreting a prenuptial agreement, we
adhere to the “basic rule of contract interpretation that a court ‘cannot redraft the
agreement, but must adopt that construction which will result in a reasonable, fair
and just contract as opposed to one that is unusual or extraordinary.’” Levy v.
Levy, 130 Wis. 2d 523, 531, 388 N.W.2d 170 (1986) (citation omitted).

¶15 Here, Mahmoud contends the circuit court erred in interpreting the
Agreement by concluding that Amanda did not breach the Agreement when she

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requested “more [financial support] than the Agreement provided.” In the
alternative, he argues that even if Amanda did not breach the Agreement, the court
erred in awarding support because: (1) Amanda “released any and all claims” not
provided for in the Agreement; (2) the Agreement did not allow for an award of
“temporary maintenance” pending the divorce; (3) the amounts paid in temporary
maintenance should have been offset against the $75,000 per year maintenance
ordered to be paid upon divorce; (4) the order that Mahmoud contribute to
Amanda’s attorney’s fees was contrary to the terms of the Agreement; (5) the
order that Mahmoud share in the mortgage and utility expenses for the marital
residence was contrary to the terms of the Agreement; and (6) the court should
have ordered monthly, as opposed to annual, payments of maintenance. We
address each of these arguments in turn.

i. Amanda’s Breach of the Agreement

¶16 Mahmoud first argues that Amanda “breached the Agreement and
triggered the provision that voided the $75,000.00 [maintenance] payments as set
forth in Paragraph 13.” The specific provision of paragraph 13 that Mahmoud
points to provides:

13. SUPPORT.

It is agreed, however, that in the event Wife should contest
any of the terms of this Prenuptial Agreement and demand
or claim more from the assets of Husband than allowed
under this Prenuptial Agreement, then, in that event, the
rights granted Wife under this Subsection shall
immediately terminate and this Subsection shall become
null and void.

(Emphasis added.) Mahmoud’s argument that Amanda breached this provision
hinges on his assertion that Amanda “repeatedly claimed, and in fact received,

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more—notably the temporary maintenance, attorney fees, and mortgage and utility
[payments]” than provided for in the Agreement.

¶17 We are not persuaded by this argument because, as noted by
Amanda, the plain language of paragraph 13’s penalty clause requires that two
conditions must be met in order to trigger the clause. This conclusion necessarily
follows because the word “and” is a conjunctive which separates two
requirements. See State v. Lossman, 118 Wis. 2d 526, 536, 348 N.W.2d 159
(1984). As such, the “event” that must occur to trigger the penalty clause has two
requirements: (1) Amanda must “contest any of the terms” of the Agreement; and
(2) she must demand or claim more from the assets of Mahmoud than allowed
under the Agreement.

¶18 Mahmoud not only fails to develop an argument that Amanda did, in
fact, contest the terms of the Agreement, he takes the opposite position on the first
page of his brief-in-chief, stating: “Neither Party contested the validity or
enforceability of the Prenuptial Agreement.” Because Amanda did not contest the
terms of the Agreement, the first condition of the penalty provision did not occur.
Accordingly, we conclude that even if Amanda requested more than she ultimately
was entitled to under the Agreement, she did not trigger the penalty clause.3
Rather, she merely argued for her own interpretation of the Agreement’s terms
instead of accepting Mahmoud’s interpretation without question. Because the
penalty clause did not prohibit her from doing so, she did not breach the
Agreement, and the maintenance provision was not voided.

3
For reasons set forth below, we conclude that Amanda argued for, and received, more
than she was entitled to under the terms of the Agreement in one respect—Mahmoud’s
contribution to her attorney’s fees.

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ii. Release of Claims

¶19 Mahmoud next argues that even if Amanda did not trigger the
Agreement’s penalty clause, she “specifically released any and all claims she may
have had” for “temporary maintenance, attorney fees, and any other support not
contemplated in the Agreement.” In support, Mahmoud again relies on
paragraph 13, which provides in relevant part:

[I]n the event of a Decree of Legal Separation or a Decree
of Marital Dissolution, then Husband shall pay and Wife
shall accept as full and complete settlement of any and all
claims against Husband the sum of seventy-five thousand
dollars ($75,000) per year for a maximum of five years if
the Parties have been married less than five years.

(Emphasis added.) To Mahmoud, the operative phrase in this excerpt is: “Wife
shall accept as full and complete settlement of any and all claims against Husband
[the relief set forth].”

¶20 We disagree with Mahmoud’s interpretation as he ignores that the
opening clause of the very sentence upon which he relies makes clear at what
point Amanda released “any and all claims” against Mahmoud: “In the event of a
Decree of Legal Separation or a Decree of Marital Dissolution[.]” The “claims”
that Mahmoud faults Amanda for seeking all concerned payments made during the
pendency of the divorce—i.e., before a decree of legal separation or marital
dissolution was entered. Thus, we conclude Amanda did not “release” those
claims under the terms of the Agreement.

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iii. Temporary Maintenance

¶21 Mahmoud next argues that the court commissioner’s award of family
support during the pendency of the divorce was contrary to multiple provisions
found in paragraph 12 of the Agreement. The relevant provisions provide:

12. DISPOSITION OF PROPERTY IN THE EVENT
OF DIVORCE.

In the event of the divorce or legal separation of the Parties
while both Parties are living, the Parties agree as follows:

….

(b) Neither Party need make any provisions for the other
for community, marital, quasi-community or deferred
marital property interests, alimony, support or maintenance
payments except as otherwise stated herein, property or
estate division or other rights, and both Parties agree to
waive any right to receive such interests.

(c) Each Party will retain his or her individual property and
income.

….

(e) Neither Party shall have or acquire any right, title,
claim or interest in or to the real or personal property or
income of the other, and each shall hold all real or personal
property which he or she may now or may hereafter own in
his or her sole name and shall receive all income which he
or she may now or hereafter be entitled to free from any
claim or right by or of the other as though no marriage had
ever taken place between them. Both parties hereby
mutually release and waive any and all right to receive
alimony, support, or maintenance payments, except as
otherwise stated herein, whether temporary or permanent,
from the other ….

(Emphasis added.)

¶22 As an initial matter, we note that the plain language of paragraph 12
limits its application to after the “event of divorce” has occurred. As discussed

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above, the family support payments ordered by the commissioner took place prior
to the finalization of the divorce. Still, Mahmoud argues that the paragraph “is not
prefaced on waiting for a final judgment.” As grounds, he asserts that “by
definition temporary maintenance or support is that while the Parties are still
married and the divorce is pending but not final.” Based on that definition, he
contends that the reference to “temporary maintenance” in paragraph 12 shows
that its provisions apply during the entirety of the divorce proceedings.

¶23 We reject this argument because it is based on a false premise—
namely, Mahmoud’s limited definition of “temporary maintenance.” Mahmoud
cites to no legal authority restricting the definition of temporary maintenance to
that maintenance paid while a divorce is pending but not final. To the contrary, as
Amanda observes, our case law embraces a broader definition of temporary
maintenance. Namely, we have employed the phrase “temporary maintenance” to
refer to maintenance awards ordered for a limited duration, even after the event of
a divorce has occurred. See Roellig v. Roellig, 146 Wis. 2d 652, 654, 431 N.W.2d
759 (Ct. App. 1988). Indeed, that is the exact type of maintenance that was
awarded in this case upon the parties’ divorce: $75,000 of annual maintenance for
a temporary period of five years post-divorce.

¶24 Moreover, even if we embraced Mahmoud’s position that
paragraph 12 applied during the pendency of the parties’ divorce, we conclude his
argument that the commissioner’s award of family support to Amanda during the
divorce proceedings was in error still fails. This conclusion is based on the text of
paragraph 12 providing that the “Parties hereby mutually release and waive any
and all rights to receive alimony, support, or maintenance payments, except as
otherwise stated herein[.]” (Emphasis added.)

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¶25 The provision of the agreement that is “otherwise stated herein” is
set forth in paragraph 5:

5. COMMON EXPENSES – SUPPORT.

Notwithstanding the foregoing paragraph [which provides
for the individual treatment of the Parties’ earnings during
the marriage], the Parties agree that during the period of
time in which they are married to each other that they shall
contribute proportionately to the payments of all common
household expenses in relationship to their asset ownership
and income. Common household expenses shall include
such items as rent or mortgage payments, property taxes on
residences, property owners’ insurance, maintenance
expenses on residences, food, joint travel expense and all
other reasonable and necessary expenses for the joint
maintenance of the Parties. “All other reasonable and
necessary expenses” shall not include clothing, jewelry and
other personal items, personal care, entertainment and
automobile expenses which shall be the individual
responsibility of each party.

(Emphases added.) Mahmoud attempts to minimize the import of this section by
arguing that once Mahmoud moved out of the parties’ marital residence they no
longer shared a “common household.” In so arguing, he implicitly invites us to
interpret “common” to modify the word “household” and to mean “held, enjoyed
experienced, or participated in equally by a number of individuals.” See Common,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1993).

¶26 We decline Mahmoud’s invitation. Instead, we interpret the
Agreement’s use of “common” to mean “characteristic of a usual type or standard
… quite usual or average[.]” See id. Such an interpretation is in accord with the
types of household expenses listed in the Agreement—i.e., standard expenses such
as rent, food, travel, maintenance, taxes and insurance. And, nothing in the
Agreement provides the parties must share a household in order to be responsible
to share in the cost of their household expenses.

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¶27 Moreover, our interpretation adheres to the basic rule that we must
interpret a prenuptial agreement in a manner that is reasonable, fair and just. See
Levy, 130 Wis. 2d at 531. To explain, if we accepted Mahmoud’s interpretation of
the Agreement, then Amanda—who, pursuant to the parties’ agreement that she
stay home with the children, had no independent income during the marriage or
during the pendency of the divorce—would be left without any money for
mortgage payments, maintenance of the residence, food, travel, and other
reasonable and necessary expenses based solely on Mahmoud’s decision to move
out of their shared household. Such a result would be both extraordinary and
unusual, and we decline to adopt it. Id.

iv. Offset

¶28 Mahmoud next argues that “[i]t was error not to offset amounts paid
in temporary maintenance.” He reasons that “[b]ecause the $54,000.00 in
temporary maintenance payments [that he was ordered to pay] were contrary to the
Agreement, [Amanda] should be required to pay them back.” For the reasons just
explained, the family support payments Mahmoud paid to Amanda during the
pendency of the divorce were not contrary to the terms of the Agreement.
Therefore, the underpinning of Mahmoud’s argument for an offset lacks merit.

v. Attorney’s Fees

¶29 Mahmoud also argues that the circuit court’s order that he contribute
to Amanda’s attorney’s fees was contrary to the terms of the Agreement. He relies
upon the fact that although the Agreement did not explicitly address the issue of
attorney’s fees, it did provide that the parties are responsible for their individual
debts. This responsibility is outlined in paragraph 9:

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9. PAYMENT OF DEBTS AND LIABILITIES.

Each Party shall assume and pay out of his/her individual
property without any obligation or liability on the part of
the other therefor the following liabilities:

....

(b) All debts, obligations, taxes, assessments and expenses
at any times incurred, arising, existing or relating to the
acquisition, holding, disposition, operation, management or
administration of his/her individual property[.]

….

Notwithstanding the foregoing paragraph, either Party may
voluntarily contribute toward the payment of the individual
liabilities of the other.

¶30 We conclude that, under this paragraph, Mahmoud is correct that an
award of attorney’s fees is contrary to the terms of the Agreement. Our supreme
court has long held that, in a divorce action, one spouse’s attorney’s fees are a debt
solely attributable to that spouse. See O’Connor v. O’Connor, 48 Wis. 2d 535,
540, 180 N.W.2d 735 (1970). As the clear intent of the parties under paragraph 9
was to make each party responsible for their own debts, we therefore conclude that
the circuit court erred in ordering Mahmoud to contribute toward Amanda’s
attorney’s fees.

¶31 Amanda advances two arguments against this conclusion. First, she
contends that attorney’s fees may be considered a common household expense,
thereby making them payable under paragraph 5. We are not persuaded. As we
have explained, paragraph 5 clearly applies to common household expenses—that
is, those expenses that are usual or standard expenses incurred by a household.
We do not consider attorney’s fees to be such a usual or standard expense, and
Amanda provides no citation to any legal authority that would suggest an opposite
conclusion.

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¶32 Second, Amanda argues that paragraph 10 of the Agreement may
entitle her to attorney’s fees. That paragraph provides, in part:

10. DISPOSITION OF PROPERTY TO OTHER
PARTY.

Notwithstanding any other provision of this Agreement,
either Party may by appropriate written instrument transfer,
gift, convey, devise or bequeath any property to the other.

Amanda contends that “[n]othing in paragraph 10 states that the transfer of
property must be voluntarily made. Therefore, an appropriate written
instrument—such as a court order—can require Mahmoud to transfer property to
Amanda during the marriage.”

¶33 Again, we are unpersuaded. First, the provision states a “Party may
… transfer,” which clearly implies a voluntary transfer, and a court-ordered
payment can hardly be considered a voluntary transfer. Second, to hold that a
court order could be considered an “appropriate written instrument” by which one
spouse could involuntarily “gift” or “transfer” property to another would lead to an
absurd result: the effective evisceration of all other provisions in the Agreement.
Just as we declined to adopt Mahmoud’s extraordinary interpretation of
paragraph 5, so too do we decline to adopt Amanda’s extraordinary interpretation
of paragraph 10.4 See Levy, 130 Wis. 2d at 531.

4
We observe that, generally, a circuit court has the discretion to order either party to
contribute to the other party’s litigation costs and attorney’s fees in a family action under WIS.
STAT. § 767.241(1) (2017-18). See Johnson v. Johnson, 199 Wis. 2d 367, 377, 545 N.W.2d 239
(Ct. App. 1996). However, Amanda does not develop any argument that this discretionary
authority survives a prenuptial agreement where—like here—the terms of the agreement prohibit
an award of attorney’s fees. Nor are we aware of any legal authority for such a proposition. In
addition, we note that Amanda does not argue that our concluding the terms of the Agreement
prohibit an award of attorney’s fees would be inequitable. Indeed, she expressly acknowledges

(continued)

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vi. Mortgage and Utility Payments

¶34 Mahmoud next contends that the circuit court erred by ordering him
to “equally share the responsibility for mortgage payments and utilities” while the
sale of the parties’ marital residence was pending. In this instance, his argument
concerns the text of paragraph 16 of the Agreement, which reads:

16. PURCHASE OF RESIDENCE.

The Parties contemplate that they will in the future
purchase a residence. The Parties shall hold title to the
residence, and all furniture, tools, equipment, fixtures, and
miscellaneous household items of the residence, as marital
property regardless of the source of the funds used to
purchase the same. The Parties shall have equal rights to
the control, management and use of the residence and share
the responsibilities for the same.

Mahmoud concedes that the court’s order may appear consistent with this
language at “first glance.” Nevertheless, he asserts that the court erred because the
intent of the parties under paragraph 16 was that “expenses and responsibilities
[related to the marital residence] are equal because, or while, the rights of control,
management and use of the residence are also equal.” Based on this assertion, he
contends that after the January 2017 temporary order granted Amanda the sole use
of the marital residence, “then the condition for sharing the expenses [for the
marital residence] was removed. When the stated condition … for sharing
expenses was removed, then the responsibility for sharing expenses … was
likewise removed.”

that she has “consistently argued that the terms of the prenuptial agreement be applied … [and
that on appeal she] is not contesting the terms of the prenuptial agreement.”

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

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¶35 We reject Mahmoud’s argument. The plain language of
paragraph 16 establishes two requirements regarding the marital residence—
namely, each party shall: (1) have equal rights to the control, management and use
of the residence; and (2) share the responsibilities for the same. See Lossman, 118
Wis. 2d 526 at 536. There is no language in the paragraph that makes one
requirement contingent upon the other, and we may not rewrite a prenuptial
agreement to give it a meaning not agreed to by the parties. Taylor v. Taylor,
2002 WI App 253, ¶12, 258 Wis. 2d 290, 653 N.W.2d 524.

¶36 As Amanda aptly notes, the parties could have readily included a
provision in the Agreement that embodied the interpretation Mahmoud now offers
to us. For example, paragraph 16 could have said: “The Parties shall share the
responsibilities for the residence if they have equal rights to the control,
management and use of the residence.” But the parties did not do so, and, as
indicated, we cannot revise their agreed-upon terms. See id. Consequently, we
determine that regardless of whether the January 2017 temporary order affected
Mahmoud’s use of the marital property, the requirement that he share in the
responsibility for the residence remained.5

¶37 Mahmoud also argues that our interpretation of paragraph 16 is
inconsistent with our interpretation of the “breach” provision of paragraph 13
because it requires us to give the word “and” two different meanings. We
disagree. In both paragraphs, we have interpreted the Agreement’s use of the
conjunctive “and” to set forth two requirements. What Mahmoud fails to

5
Mahmoud does not raise any arguments concerning the propriety of the January 2017
temporary order’s restriction on his use of the marital residence.

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recognize, and what differentiates the two paragraphs, is that paragraph 13 set
forth two requirements that had to be satisfied in order to trigger a further action:
the immediate termination of the obligation at issue. Stated differently,
paragraph 13 used the conjunctive “and” to delineate two conditions precedent.
Conversely, in paragraph 16, the two requirements are not conditions precedent to
anything. Rather, they are standalone requirements setting forth the parties’
obligations under the Agreement.

vii. Timing of Maintenance Payments

¶38 Finally, Mahmoud argues that the circuit court erred by ordering that
he pay his $75,000-per-year maintenance obligation in an annual lump sum, as
opposed to on a monthly basis. Once again, the relevant language is found in
paragraph 13 and states:

In the event of … a Decree of Marital Dissolution, then
Husband shall pay and Wife shall accept as full and
complete settlement of any and all claims against Husband
the sum of seventy-five thousand dollars ($75,000) per
year for a maximum of five years if the Parties have been
married less than five years. If the Parties have been
married more than five years and the Wife is out of the
work force in order to care for children of the marriage,
then Husband shall pay Wife $100,000 per year for a
maximum period of ten years (“Payment Period”). … If
during the Payment Period, the Wife becomes employed,
then any annual payment to Wife shall be reduced by an
amount equal to the annual salary of Wife during such
period.

(Emphases added.)

¶39 The Agreement plainly provides that Mahmoud’s maintenance
obligation, based upon the parties’ less-than-five-year marriage, is $75,000 per
year for five years. However—and despite Amanda’s argument that the use of the

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phrase “per year” unambiguously establishes a once yearly payment for five
years6—the Agreement does not explicitly provide for whether the maintenance
payments should be made on an annual or different basis.

¶40 Still, the Agreement calls for an “annual payment” of maintenance,
albeit for maintenance payments that were triggered by a marriage of more than
five years. Even though those payments were not triggered, we find the use of the
phrase “annual payment” instructive, because the meaning of a particular
provision in a contract must be ascertained in reference to the contract as a whole.
See MS Real Estate Holdings, LLC v. Donald P. Fox Family Tr., 2015 WI 49,
¶38, 362 Wis. 2d 258, 864 N.W.2d 83.

¶41 With that principle in mind, we conclude that the Agreement’s
reference to maintenance payments of $75,000 “per year” is properly interpreted
as calling for annual payments. In fact, there is no language in the Agreement that
suggests monthly payments, or any other contrary payment schedule, would be
proper.7

6
To explain, any number of different payment schedules—i.e., weekly, biweekly,
monthly, or annually—could easily be instituted and structured to result in $75,000 being paid per
year by simply dividing the total sum by the total number of payments.
7
Mahmoud makes a cursory argument that he would lose the “ability to stop or reduce
payment at a triggering event” if the maintenance payments are made annually, as opposed to
monthly. This argument fails, however, because the plain language of the Agreement does not
provide for any “triggering event” that cuts short maintenance payments made pursuant to a
divorce after a marriage of less than five years—only a divorce following a marriage of more than
five years provides for possible early termination of maintenance payments.

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B. Child Support

¶42 Mahmoud next argues the circuit court erroneously exercised its
discretion in setting his child support obligation. The setting of child support is
entrusted to the sound discretion of the circuit court and will not be disturbed on
review absent an erroneous exercise of that discretion. Randall v. Randall, 2000
WI App 98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737. We will uphold a circuit court’s
discretionary decision if the court examined the relevant facts, applied a proper
standard of law, and used a demonstrated rational process to reach a reasonable
conclusion. Id. Although the proper exercise of discretion contemplates that a
court explain its reasoning in setting child support, we may search the record to
determine if it supports the court’s discretionary decision. Id.

¶43 When a circuit court sets child support in accordance with the
applicable guidelines, it is presumed that the court’s determination is fair. Ladwig
v. Ladwig, 2010 WI App 78, ¶23, 325 Wis. 2d 497, 785 N.W.2d 664. In order to
deviate from the applicable percentage standard, the court must find by the greater
weight of the credible evidence that the use of the standard would be unfair to
either the child or the party requesting deviation. Id. In determining fairness, the
court must consider the factors enumerated under WIS. STAT. § 767.511(1m).
Ladwig, 325 Wis. 2d 497, ¶23.

¶44 Here, Mahmoud does not dispute that the circuit court set his child
support obligation in accordance with the applicable child support guidelines, as
presumptively required by WIS. STAT. § 767.511(1j). Rather, he argues that the
court erroneously exercised its discretion because it did not adequately explain its
decision not to deviate from the guidelines.

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No. 2018AP735

¶45 In its written findings of fact and conclusions of law, the circuit
court began its discussion of child support by articulating Mahmoud’s closing
argument as to why the guideline child support figure ($7889 per month) would be
unfair. The court wrote:

Mahmoud believes that any child support in excess of
$3,000 a month would be excessive. He testified that the
parties spent about $1,572 per month on typical living
expenses for the entire household. He points out that the
family did not live a lavish lifestyle rather a comfortable
and modest one.

After summarizing Amanda’s arguments, the court then listed the WIS. STAT.
§ 767.511(1m) factors and stated that, “having considered” them, “this Court
cannot find by the greater weight of the credible evidence that use of the
25 percent standard is unfair to the children or to any of the parties.”

¶46 Although we recognize that the circuit court did not explicitly apply
the facts of this case to the statutory factors it found relevant, we nonetheless
conclude that the court’s determination was not an erroneous exercise of its
discretion. To explain, by framing his unfairness argument in terms of the
family’s monthly expenses and lifestyle, Mahmoud implicitly invoked only WIS.
STAT. § 767.511(1m)(c), which directs a court to consider “[i]f the parties were
married, the standard of living the child would have enjoyed had the marriage not
ended in annulment, divorce or legal separation.”

¶47 On this record, there is more than ample support for the circuit
court’s rejection of Mahmoud’s position regarding that statutory factor. For
example, while Mahmoud asserted that the family’s typical monthly expenses
were $1572, Amanda submitted financial declarations showing that she and the
children had monthly expenses of $13,044.37 in November of 2016 and

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No. 2018AP735

$11,385.55 in October of 2017. These figures corresponded to Mahmoud’s own
earlier-submitted financial declarations, which listed the family’s monthly
expenses at: $10,865 in November of 2016; $9630 in June of 2017; and $9750 in
October 2017.

¶48 Given the great discrepancy between the monthly expense figures in
the parties’ financial declarations—none of which Mahmoud disputes on appeal—
and Mahmoud’s position regarding the family’s standard of living in his closing
argument, we cannot conclude that the circuit court erroneously exercised its
discretion. To the contrary, we agree with the court that Mahmoud failed to prove
by the greater weight of the credible evidence that the standard of living the
children enjoyed during the marriage was a factor that weighed in favor of finding
unfairness in applying the guideline amount. As Mahmoud failed to develop any
other argument as to why the applicable child support guidelines were unfair, we
will not disturb the court’s application of that presumptively fair standard. See
Ladwig, 325 Wis. 2d 497, ¶23.8

II. Amanda’s Cross-Appeal

¶49 In her cross-appeal, Amanda argues the circuit court erroneously
exercised its discretion in determining the children’s physical placement schedule.
A circuit court has broad discretion in making physical placement decisions.
Lofthus v. Lofthus, 2004 WI App 65, ¶16, 270 Wis. 2d 515, 678 N.W.2d 393.

8
Although we affirm the circuit court’s exercise of its discretion solely on the basis
explained above, we note that the court also invoked WIS. STAT. § 767.511(1m)(hm), the “best
interests of the child” factor, in explaining why its child support determination was fair.
Specifically, the court wrote that “[t]his Court is of the opinion that Amanda will appropriately
make use of the child support payments for the benefit of the children. Indeed, the children
deserve to benefit from the significant earning capacity of their father.”

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No. 2018AP735

Consequently, we must give great weight to the court’s determination, and we will
sustain its exercise of discretion as long as the court considered the facts of record
in light of the proper legal standard and reached a reasonable conclusion. Wolfe v.
Wolfe, 2000 WI App 93, ¶17, 234 Wis. 2d 449, 610 N.W.2d 222.

¶50 In the circuit court, the children’s guardian ad litem (GAL)
submitted a physical placement recommendation that called for Amanda to move
to the Twin Cities, where “Mahmoud [would] have placement every other
weekend in the Twin Cities while he is not working. … He should also have
placement one week during the month of June and July[.]” Amanda joined this
recommendation. Mahmoud, in turn, argued for an “alternating two week/two
week schedule.”

¶51 The circuit court ultimately declined to adopt either party’s
recommendation. Instead, it adopted the physical placement schedule
recommended by Dr. Anton Smets, a psychologist initially hired by Amanda to
perform a custody study.9 In doing so, the court identified and analyzed, at length,
all sixteen statutory factors relevant to the best interests of the children, as required
by WIS. STAT. § 767.41(5)(am).

¶52 Amanda now argues that circuit court “erred by rejecting the
[GAL’s] recommendation.” In support, she provides an extensive recitation of the

9
Doctor Smets completed a custody study after conducting: (1) an individual meeting
with Amanda; (2) a telephone interview with Mahmoud; (3) an in-home visit with Amanda and
the children in Eau Claire; (4) an in-home visit with Mahmoud and the children in Sioux
City; and (5) various other meetings and interviews. Ultimately, Dr. Smets produced a lengthy,
twenty-four page report in which he recommended that the children be placed on a one week/two
week rotation schedule, consistent with the schedule that had been in place by court order since
May of 2017.

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No. 2018AP735

facts of the case and makes various arguments attacking the credibility of
Dr. Smets and crediting the testimony of a second expert she retained, Dr. Kip
Zirkel.10

¶53 The problem with Amanda’s argument is that it ignores our standard
of review. Regardless of whether there was evidence that supported the GAL’s
recommendation, the circuit court was entitled to rely on the report and
recommendation of Dr. Smets, because the weight and credibility of expert
witness testimony are matters uniquely within the province of the fact finder—
here, the circuit court. See Bloomer Housing Ltd. P’ship v. City of Bloomer,
2002 WI App 252, ¶12, 257 Wis. 2d 883, 653 N.W.2d 309. Doctor Smets’
recommendation was not incredible as a matter of law, and the court therefore had
a right to rely upon it. We see no reason to disturb the court’s discretionary
decision.

CONCLUSION

¶54 In summary, we affirm the circuit court in all respects, save one.
Namely, we conclude the circuit court’s determination that the Agreement did not
preclude an award of attorney’s fees was in error. Accordingly, we reverse the
attorney’s fees portion of the judgment, and we remand for further proceedings on
that limited issue.

10
Doctor Zirkel, a child adolescent psychologist, did not perform a custody study in this
case. Instead, as the circuit court found, he performed a single interview with Amanda, “talked in
general about a variety of topics and how they may impact upon children,” and “critiqued the
evaluation done by Dr. Smets, but offered no opinion about placement of” the parties’ children.

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No. 2018AP735

By the Court.—Judgment affirmed in part; reversed in part, and
cause remanded for further proceedings. Order affirmed.

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

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