Ann Marie Jahimiak v. David Ralph Jahimiak

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.
December 23, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2025AP558 Cir. Ct. No. 1997FA501

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE MARRIAGE OF:

ANN MARIE JAHIMIAK,

PETITIONER-RESPONDENT,

V.

DAVID RALPH JAHIMIAK,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for La Crosse County:
SCOTT L. HORNE, Judge. Affirmed.

Before Graham, P.J., Blanchard, and Kloppenburg, JJ.

¶1 BLANCHARD, J. David Jahimiak appeals an order of the circuit
court reducing his obligation to pay maintenance to Ann Marie Jahimiak under
their 1999 judgment of divorce, arguing that the court should have lowered the
No. 2025AP558

maintenance further.1 This court reversed an earlier order modifying maintenance.
Jahimiak v. Jahimiak, 2024 WI App 5, ¶3, 410 Wis. 2d 557, 2 N.W.3d 756
(concluding that the circuit court failed to adequately explain the basis for
modification of maintenance). Following remand, the circuit court entered the
order that David now appeals. The modification that David now challenges
assigns different payment amounts to each of three time periods, stepping the
amount down from one period to the next.

¶2 David argues that the circuit court on remand erred in the following
ways, including by failing to act consistently with this court’s decision in
Jahimiak. David argues that the circuit court improperly imputed income to him
based on his ownership of both a rental office building and funds in a stock trading
account. In addition, David challenges the following aspects of the court’s
stepped-down maintenance structure: beginning the first step-down period on
December 1, 2024, instead of beginning it on the earlier effective date of the
reversed order, October 1, 2022, if not earlier still; using the step-down structure
in any manner, instead of ordering that David pay the lowest amount as soon as
the order became effective; and ordering that the final step-down period be
indefinite. We address each of these arguments and conclude that David fails to
show that the circuit court erroneously exercised its discretion or failed to act
consistently with this court’s decision in Jahimiak. Accordingly, we affirm.

1
We refer to the parties after this point by their first names because they share a last
name.

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No. 2025AP558

BACKGROUND

¶3 In our 2023 decision, we highlighted the following background of
this case to that time:

By the time of the 1999 divorce, Ann and David
had been married for more than 27 years. At that time, Ann
was 49, worked as a sales clerk part time, and attended
college part time. David was 51 and worked as a self-
employed dentist. The circuit court awarded Ann
“permanent spousal maintenance of $4,500 per month,”
which “shall continue until the death of either party or
[Ann’s] remarriage.” However, despite using the term
“permanent,” the court also stated that “[t]he amount of
maintenance may be reviewed by the Court when [David]
reaches an appropriate age of retirement, which this Court
now anticipates being age 65.”

Jahimiak, 410 Wis. 2d 557, ¶5 (footnote omitted).2

¶4 In October 2021, when he was 74, David filed a motion to terminate
maintenance, expressing plans to undergo surgery and then retire from his practice
as a dentist. See id., ¶7. After taking evidence on the issue, Judge Gonzalez
issued a written order in February 2023 that required David to pay Ann $3,850 per
month in maintenance, which was a reduction from the $4,500 that Judge Damon
ordered in 1999. Id., ¶¶5-6, 11. This obligation was effective as of October 1,
2022, and it was indefinite, in the sense that it would end with the death of either
party or Ann’s remarriage. See id.

2
The Hon. John A. Damon presided at the time of the divorce in 1999 and made the
maintenance award described in Jahimiak v. Jahimiak, 2024 WI App 5, ¶5, 410 Wis. 2d 557,
2 N.W.3d 756). The maintenance rulings challenged in the 2023 appeal were made by the Hon.
Ramona A. Gonzalez. All rulings following remand were made by the Hon. Scott L. Horne.

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¶5 David appealed the February 2023 maintenance order. David
contended in pertinent part that Judge Gonzalez erroneously exercised the court’s
discretion in failing to set his modified maintenance obligation at a lower level.
See id., ¶¶3, 54. This court concluded that the court did not adequately explain
how it arrived at a maintenance award of $3,850 per month and that we were
unable to discern a basis for that amount in the record. See id., ¶¶55-56.
Accordingly, we reversed the February 2023 order and remanded for the court to
exercise its discretion as to whether it should modify maintenance, and if so, in
what amount, consistent with our opinion. See id., ¶¶57-58 & n.12, 66.

¶6 On remand, as pertinent to the maintenance topic, neither party
sought to offer, and Judge Horne did not require, new evidence. Instead, the
parties agreed to abide by Judge Horne’s reliance on the factual record as it existed
at the time of Judge Gonzalez’s February 2023 decision. See id., ¶58 (directing
circuit court on remand to “consider whether, in its judgment, it is appropriate for
the court to decide” the motion for maintenance modification based on existing
record and arguments). Judge Horne held two hearings and considered the
submission of materials by the parties, analyzing the evidence contained in the
record created before Judge Gonzalez.

¶7 At one of these hearings, Judge Horne explained in an oral ruling
that the maintenance order would be indefinite in its length. The court later issued
a written order modifying the amount of David’s maintenance obligation.
Specifically, David would pay Ann maintenance at specified amounts during three
periods: $3,500 per month from December 1, 2024 to June 30, 2025; $2,800 per
month from July 1, 2025 to December 31, 2025; and $2,200 per month beginning

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January 1, 2026, and continuing indefinitely.3 The court considered and rejected
arguments that David raised in a motion for reconsideration. David appeals.

DISCUSSION

¶8 David’s arguments on appeal challenge aspects of Judge Horne’s
exercise of discretion in modifying the order requiring David to pay maintenance
under WIS. STAT. § 767.59 (2023-24) following remand.4

¶9 “A circuit court ‘may’ ‘[r]evise and alter’ a divorce maintenance
award when the movant demonstrates ‘a substantial change in circumstances
warranting the proposed modification.’” Jahimiak, 410 Wis. 2d 557, ¶42 (citing
WIS. STAT. § 767.59(1c)(a)1., (1f)(a); Rohde-Giovanni v. Baumgart, 2004 WI 27,
¶30, 269 Wis. 2d 598, 676 N.W.2d 452). Here, as Judge Horne noted on remand,
there is no dispute that David’s retirement constitutes a substantial change in
financial circumstances that justified the court’s consideration of whether to
modify the maintenance award that existed before Judge Gonzalez issued her
modification order. See id. (citing Licary v. Licary, 168 Wis. 2d 686, 692, 484
N.W.2d 371 (Ct. App. 1992)).

¶10 When setting maintenance pursuant to a motion to modify
maintenance under WIS. STAT. § 767.59, the circuit court must consider two
objectives: “support[ing] the recipient spouse in accordance with the needs and
earning capacities of both the recipient spouse and the payor spouse,” and

3
This summary takes into account one minor correction that the court circuit made in a
later order that is not disputed on appeal.
4
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2025AP558

“ensur[ing] that there is a fair and equitable financial arrangement between the
parties.” Rohde-Giovanni, 269 Wis. 2d 598, ¶¶29, 31.

¶11 We identified pertinent legal standards in our earlier decision:

If there has been a substantial change of
circumstances, the decision whether to modify the amount
or duration of maintenance is committed to the circuit
court’s sound discretion. Rohde-Giovanni, 269 Wis. 2d
598, ¶17.

An erroneous exercise of discretion involves a
failure to consider the relevant factors, basing an award on
factual errors, making an error of law, or granting an
excessive or inadequate award. Id., ¶18. “[A]
discretionary determination must be the product of a
rational mental process by which the facts of record and
law relied upon are stated and are considered together for
the purpose of achieving a reasoned and reasonable
determination.” Hartung v. Hartung, 102 Wis. 2d 58, 66,
306 N.W.2d 16 (1981). We affirm if the court “examined
the relevant facts, applied a proper standard of law, and,
using a demonstrated rational process, reached a conclusion
that a reasonable judge could reach.” Long v. Long, 196
Wis. 2d 691, 695, 539 N.W.2d 462 (Ct. App. 1995).

Jahimiak, 410 Wis. 2d 557, ¶¶45-46.

¶12 We review the circuit court’s findings of fact under a clearly
erroneous standard. Sellers v. Sellers, 201 Wis. 2d 578, 586, 549 N.W.2d 481 (Ct.
App. 1996) (citing WIS. STAT. § 805.17(2)). “Under this standard, even though
the evidence would permit a contrary finding, findings of fact will be affirmed on
appeal as long as the evidence would permit a reasonable person to make the
finding.” Id. To conclude that a finding is clearly erroneous, a court must
determine that “the evidence supporting a contrary finding … constitute[s] the
great weight and clear preponderance of the evidence.” See id.

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No. 2025AP558

I. Imputation of Income

¶13 David argues that Judge Horne erred by imputing income to him
based on his ownership of a rental office building and funds in a stock market
trading account. We provide pertinent legal standards before addressing the
circuit court’s treatment of each source of imputed income.

¶14 When a circuit court determines that a party is “shirking” in
connection with potential income, it is appropriate for maintenance purposes “to
consider the [party’s] earning capacity instead of his or her actual earnings.”
Scheuer v. Scheuer, 2006 WI App 38, ¶9, 290 Wis. 2d 250, 711 N.W.2d 698.
The determination that a party is shirking “does not require a finding [that] the
obligor reduced his or her earnings for the purposes of avoiding the maintenance
obligation, nor must the court specifically use the word ‘shirking.’” Id., ¶11.
Instead, “[t]he test is whether the reduction in actual earnings was voluntary and
unreasonable under the circumstances.” Id. “There is no set list of factors which
are decisive in a shirking determination … [but] perhaps the most common factor
accompanying such a finding is a voluntary or self-inflicted change in financial
circumstances.” Wallen v. Wallen, 139 Wis. 2d 217, 225-26, 407 N.W.2d 293
(Ct. App. 1987); Scheuer, 290 Wis. 2d 250, ¶11.

¶15 We review a circuit court’s resolution of a claim of shirking as an
issue of law, but one that “is so intertwined with factual findings necessary to
support it,” that we give “appropriate deference” to the circuit court. See Scheuer,
290 Wis. 2d 250, ¶9 (citing Van Offeren v. Van Offeren, 173 Wis. 2d 482, 492-
93, 496 N.W.2d 660 (Ct. App. 1992); Chen v. Warner, 2005 WI 55, ¶43, 280
Wis. 2d 344, 695 N.W.2d 758).

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No. 2025AP558

Income Imputed for Building Ownership

¶16 Judge Damon in the original divorce proceedings awarded David
ownership of the rental office building as part of the property division. At the
time, David stipulated that it was worth $350,000. Judge Horne noted that, in
2022, Judge Gonzalez found that the property could reasonably be expected to
realize $600,000 in sales proceeds, which could be invested conservatively at an
expected rate of return of 4 percent. Judge Gonzalez further found that: sometime
before the evidentiary hearings in 2022, David listed the property for sale at
$799,000; David then became concerned that if he sold the building by the time of
the 2022 hearings, Judge Gonzalez would consider the proceeds in determining his
earning capacity; for that reason, David raised the listed price to $919,000, even
though he had received no offers at the listed price of $799,000, to avoid
consummating a sale before the court ruled on his motion to modify maintenance.
Based on this, and the value of the property at the time of the divorce, Judge
Gonzalez determined that it could be reasonably inferred that the sale of the
property could produce $600,000, from which David could earn income.
Adopting these findings, Judge Horne found that it was reasonable to impute to
David an additional earning capacity of $24,000 based on building ownership, as
Judge Gonzalez had also found.

¶17 In addressing David’s motion for reconsideration, Judge Horne
added the following observations on the topic of the building. From the time of
the divorce onward, David owned the building and used it as “income-producing
property.” Further, David had “expressed an awareness” of strategies “that he
could use to zero out income [related to the building] for maintenance purposes.”
More specifically, Judge Horne determined that over time David elected “to use
income-producing property in a way that resulted in no attributable income for

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No. 2025AP558

maintenance purposes,” which “was inconsistent with the purpose of the property
at the time of the divorce[ and] was an unreasonable decision.” The court
determined that this “warranted imputation of income.”

¶18 Employing the “appropriate deference” to findings of the circuit
court that is called for under Scheuer, we affirm Judge Horne’s determination that
David’s handling of the building constituted a form of shirking in a way that
creates potential income for him to take into account for purposes of maintenance.

¶19 David contends that there is no evidence that he took improper
actions in connection with the building, such as intentionally holding onto it for
the purpose of reducing his income. This argument misapplies the test for shirking
and income imputation to the facts found by the circuit court. For example, David
does not dispute that he took the voluntary actions of listing the building for sale
first at $799,000 and then at $919,000 during the times that Judges Gonzalez and
Horne considered relevant. The two judges also both found that the timing could
support a reasonable inference that he intentionally delayed realization of the
actual value from the property until after the modification motion was resolved by
Judge Gonzalez. But that finding of intentional avoidance of income was not
necessary to support the court’s decision on imputation. See Scheuer, 290 Wis. 2d

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No. 2025AP558

250, ¶11. The more relevant point is that David fails to show clear error in Judge
Horne’s findings that his actions were unreasonable under the circumstances.5

¶20 Turning to the potential sale price of the building found by Judge
Horne, David asserts that there is no basis in the record for the shared finding of
Judges Gonzalez and Horne that the building was worth $600,000. David
contends that all the record reflects is that David was operating the building at a
loss at the time of the maintenance modification hearings before Judge Gonzalez
and that David was unable to sell it. As noted above, however, in deriving this
estimate of value, Judge Horne took into account the building’s value at the time
of the divorce and recent list prices for the building. The evidence was not
extensive, but David does not persuade us that it was insufficient to sustain the
court’s approach to imputing income to David based on the value of the building.
See Scheuer, 290 Wis. 2d 250, ¶10 (rejecting as unsupported argument that “it
was improper to impute [maintenance payor’s] earning capacity without expert
testimony about his actual capacity”).

¶21 David further contends that the circuit court’s imputation of income
based on his ownership of the building is, in his words, “tantamount to requiring
David to liquidate an asset to pay maintenance to Ann so that she would not have
to liquidate her own assets.” See Dowd v. Dowd, 167 Wis. 2d 409, 417, 481

5
David characterizes Judge Gonzalez as having determined only that it would have been
“reasonable” for David to sell the office building, and that the court did not necessarily determine
that it was unreasonable not to sell it. But, as should be evident from our summary of Judge
Gonzalez’s specific factual findings, this is not a fair interpretation of the court’s findings.
Further, regardless of Judge Gonzalez’s specific findings, David does not clearly explain why
Judge Horne could not make further findings or draw additional inferences related to the building
that are supported by Judge Gonzalez’s factual findings, which David did not attempt to
undermine with contrary evidence on remand.

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No. 2025AP558

N.W.2d 504 (Ct. App. 1992) (the first spouse “should not be forced to invade” the
other spouse’s portion of the property division to maintain an adequate lifestyle
when the second spouse does not have to invade the second spouse’s portion of the
division to maintain an adequate lifestyle). This argument is flawed in several
respects. First, Judge Horne stated that the court’s goal in modifying maintenance
was not to re-divide assets already distributed to the parties as part of the property
division in the original divorce proceedings. Instead, the court clarified, it
assessed only whether David’s ownership of the building provided relevant
evidence on the topic of David’s earning capacity given the circumstances in
2022, as approximated by the building’s sale value. See Seidlitz v. Seidlitz, 217
Wis. 2d 82, 90-92, 578 N.W.2d 638 (Ct. App. 1998) (discussing when assets may
be “double-counted” for property division and maintenance purposes). David
does not meaningfully address this reasoning. He merely cites Dowd and asserts
that the goal of fairness required the court to apply the same logic to Ann’s income
and potential income. But he does not develop an argument that Judge Horne
should have imputed any particular source of income to Ann. Moreover, so far as
David shows from the record, neither the circuit court nor Ann required or induced
him to sell the building. Instead, David voluntarily decided to hold it out for sale.
From that starting point, Judge Horne assessed the reasonableness of David’s
decisions in connection with his listing of the building under the relevant
circumstances.

Income Imputed for Trading Account

¶22 For context regarding the stock trading account, we note that it does
not appear to be disputed that, as we stated in our 2023 opinion, by 2022 David
was no longer “‘involved in stock trading and had approximately $40,000 in
assets’ in [the] trading account, ‘prior to the payment of 2022 [r]eal estate taxes.’”

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Jahimiak, 410 Wis. 2d 557, ¶51 (alteration in Jahimiak). As summarized in our
prior opinion, Judge Gonzalez accepted Ann’s position that part of David’s
income for maintenance purposes included $3,333 in “stock proceeds,” calculated
by dividing the $40,000 remaining in the account by 12. See id., ¶50. We
reversed in Jahimiak in part because the circuit court did not adequately explain
this part of its maintenance calculations. See id., ¶¶50, 55. Following remand,
Judge Horne noted that Judge Gonzalez’s approach essentially imputed to David
income from the remaining assets in a manner which assumed that David would
exhaust those funds within approximately one year.

¶23 Judge Horne took a different approach. The circuit court considered
the trading account assets in the following manner. First, the court used
calculations regarding the parties’ incomes and expenses that were submitted by
the parties as a “starting point” for its maintenance award. Both parties worked
from the same scenario, which was that David would retain 55% of the parties’
combined income, taking into account the imputation of $24,000 a year in income
based on the office building. Ann calculated maintenance under this scenario at
$1,701 per month, and David calculated it to be $1,517 per month. The court
considered these two numbers to collectively form a “starting point,” which
implied that the court worked from something like an average of the two numbers.
The court adjusted upward from this “starting point,” in order to account for the
imputation, attributing “some level of income” to David based on the value of the
stock trading account and his handling of it. This resulted in the court arriving at
David’s monthly maintenance obligation, after the steps down, of $2,200.

¶24 Judge Horne further explained that the court was not assigning to
David “a specific dollar value” from the stock trading account, but instead was
merely relying on evidence that “supports the conclusions reached by Judge

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Damon and Judge Gonzalez that [David’s] management of the account revealed
strategic decisions to reduce the value of the accounts immediately prior to
maintenance determinations.” This, “coupled with indications” that David had
“greater assets available than may appear, warrant[ed] a modest revision upward”
of the court’s estimation of David’s maintenance obligation from what it otherwise
would be, based on other considerations. The result of this approach would appear
to be that, based on David’s control of the remaining stock trading funds, the court
imputed to him as income the average of $499 per month (based on Ann’s
maintenance calculation) and $683 per month (based on David’s maintenance
calculation), or $591 per month.

¶25 Imputation of income appears to most often arise in divorce cases in
connection with allegations of voluntary unemployment or underemployment. But
David does not challenge the premise of Judge Horne’s approach that a circuit
court may also impute income to a party when the party intentionally mismanages
a stock trading account that could represent a source of income. We consider the
court’s premise to have been valid. Instead, David asserts that there was “no
evidence” that he deliberately lost money through trading in this account, even
though Judges Damon and Gonzalez both made contrary findings. We reject this
assertion because David falls well short of developing an argument that the circuit
court clearly erred in making findings on that topic at any relevant point in the
history of this case. See Jahimiak, 410 Wis. 2d 557, ¶58 n.12 (rejecting argument
that circuit court could not find that David “deliberately lost” money through stock
trading on the ground that it “defied logic”). For example, David asserts that there
is “no evidence” that Judge Horne’s imputation of income to David “was
anywhere near the amount” “that he generated prior to” the significant losses to
the account in recent years. But on appeal it is David’s burden to establish clear

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error, and he does not attempt to show that the court’s imputation of income is
unsupportable given relevant evidence, including the history of the account’s
growth and losses, and how much money remained in the account at the relevant
time.

II. Effective Date of Modified Maintenance

¶26 David argues that the circuit court erred in setting the beginning of
the first maintenance step-down period to be December 1, 2024. Instead, David
contends, the court should have chosen October 1, 2022, if not earlier.6 To repeat,
October 1, 2022, was the effective date of the maintenance modification order that
this court reversed. See id., ¶¶4, 11, 41. For the most part, David frames his
argument as a challenge to Judge Horne rendering a decision that was not
consistent with this court’s decision in Jahimiak. But, in the alternative, he
contends that, even if the circuit court did not contradict our direction in
Jahimiak, it otherwise erroneously exercised its discretion in setting the
commencement date because there was no evidence to support that date. We first
address this court’s mandate and reasoning in Jahimiak, explaining why we
conclude that our opinion did not prohibit the approach that the circuit court took
on remand. Then we address David’s contention that the court otherwise
erroneously exercised its discretion on this issue.

6
David suggests that the circuit court should have or could have exercised its discretion
to set the effective date even earlier than October 1, 2022, such as when David retired. But we do
not understand David to develop an argument for an earlier date that does not fall with our
rejection of his argument for October 1, 2022.

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Law of the Case

¶27 Under the law of the case doctrine, “‘a decision on a legal issue by
an appellate court establishes the law of the case, which must be followed in all
subsequent proceedings in the [circuit] court ….’” See State v. Moeck, 2005 WI
57, ¶18 & n.3, 280 Wis. 2d 277, 695 N.W.2d 783 (quoting Univest Corp. v.
General Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989)). More
generally, “[o]n remand, circuit courts may not take actions ‘that conflict with the
expressed or implied mandate of the appellate court.’” See State v. McAdory,
2025 WI 30, ¶26, 417 Wis. 2d 194, 22 N.W.3d 844 (citing Tietsworth v. Harley-
Davidson, Inc., 2007 WI 97, ¶32, 303 Wis. 2d 94, 735 N.W.2d 418); WIS. STAT.
§§ 808.08-.09.

¶28 We interpret our earlier decision de novo. See Tietsworth, 303
Wis. 2d 94, ¶22 (supreme court is “final arbiter of the meaning of its own
mandates,” which it reviews as issues of law); Meyers v. Bayer AG, Bayer Corp.,
2007 WI 99, ¶22, 303 Wis. 2d 295, 735 N.W.2d 448 (application of case law to a
set of facts is a matter of law to be decided de novo).

¶29 In our previous decision, we noted that Ann proposed to Judge
Gonzalez estimates of David’s gross income and that Judge Gonzalez adopted
those figures as the court’s findings. See Jahimiak, 410 Wis. 2d 557, ¶¶50, 54. In
the prior appeal, David argued in pertinent part that “there was no evidence before
the circuit court to support the specific dividends and interest, rental income, or
stock proceeds figures” that Ann attributed to David. See id., ¶54. In line with
David’s argument on this point, we concluded that Ann failed to “directly dispute
David’s detailed and supported arguments” that, based on the record that was
available to the circuit court: David did not hold income-producing investments;

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his rental properties were losing money; and there was no logic to Ann’s proposed
attribution of monthly income to David based on one-twelfth of the value of his
remaining investment funds. See id., ¶55. As a result, this court was “left with
considerable uncertainty as to what evidence supported the gross income figures”
adopted by the circuit court. Id. We were “unable to discern in the [circuit]
court’s decision any logical path” to a maintenance award of $3,850 per month.
See id., ¶56.

¶30 Addressing proceedings that would follow remand, this court stated
that it was not “direct[ing] that the circuit court must hold a new evidentiary
hearing on remand, nor that the court may not do so.” Id., ¶58. Instead, we left
the circuit court free to consider whether it was appropriate to decide David’s
motion for maintenance modification based on the factual record as it existed at
the time of the reversed order, and also to decide the extent to which additional
argument would be appropriate. Id. We clarified that, although we reversed the
modification of David’s maintenance, our opinion “should not be interpreted as
preventing the circuit court from considering the same facts underlying its
previous decision.” Id.

¶31 To recap, in the February 2025 decision modifying maintenance,
Judge Horne set the effective date of the first reduction (from $3,850 per month to
$3,500) as December 1, 2024.7 In explaining its selection of this date, the court

7
We assume without deciding that David is correct in asserting that the amount in
monthly maintenance that David was obligated to pay Ann from October 1, 2022, through the
effective date of the first step-down in Judge Horne’s order, December 1, 2024, was $3,850.

(continued)

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No. 2025AP558

reasoned that, when “principles of fairness and need” are considered, Ann “has a
greater need” than David.

¶32 Judge Horne stated that the court could not discern in the record
what amount of maintenance David paid from the effective date of the first step-
down in Judge Horne’s order through the date of Judge Horne’s decision.
Nevertheless, Judge Horne recognized that, for each month beginning with the
effective date of December 1, 2024, through when the order was issued in
February 2025, David may have paid more than the $3,500 per month established
by Judge Horne’s order. For this reason, the court reasoned, “[p]rinciples of
fairness require[d]” that David be “compensate[ed]” for any excess payments.
Accordingly, the court ordered the parties to submit proposals for how Ann could
compensate David for any excess payments.

¶33 David asserts that our reasoning in Jahimiak required Judge Horne
to give the modification order the same effective start date as Judge Gonzalez’s
order, which was October 1, 2022. We disagree. There is nothing in our 2023
decision that required this. See Benn v. Benn, 230 Wis. 2d 301, 313, 602 N.W.2d
65 (Ct. App. 1999) (reviewing decision not to make maintenance modification
retroactive for erroneous exercise of discretion). To the contrary, this court
emphasized that we could not exercise the circuit court’s discretion for it in

As context for this assumption, we note that neither party clearly explains what David’s
maintenance obligations were during this interval, given the fact that this court reversed Judge
Gonzalez’s modification of maintenance. At several points, David asserts without explanation
that he was obligated to pay $3,850 per month—that is, the amount ordered by Judge Gonzalez—
as opposed to $4,500 per month, which was his maintenance obligation before Judge Gonzalez’s
order. Ann does not address the topic at all.

We note that neither party now asks this court to address possible arrears, or unpaid
maintenance, that might exist from any pertinent time period, and we do not address that topic.

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No. 2025AP558

structuring a proper maintenance award that accounts for all relevant facts. See
Jahimiak, 410 Wis. 2d 557, ¶41. In returning the case to the circuit court in
effectively the same position that it was in just before Judge Gonzalez issued the
February 2023 order, we did not purport to instruct the circuit court what to do
regarding the intervening months of maintenance payments between the effective
date of the reversed order and whatever Judge Horne’s order might state. See id.,
¶¶41, 57, 66; cf. Benn, 230 Wis. 2d at 314 (instructing court on remand to exercise
its discretion to modify maintenance as of a date between a specified range).
Judge Horne was free to restrict the evidentiary record to what was available to
Judge Gonzalez, as Judge Horne chose to do, without objection by the parties.
This leaves David to show that the court on remand erroneously exercised its
discretion in arriving at the December 1, 2024, effective date, which, as we now
discuss, he fails to do.

Discretionary Decision to Make Modification Effective December 1, 2024

¶34 As pertinent here, WIS. STAT. § 767.59(1m) permits circuit courts,
when modifying maintenance, to select effective dates falling as early as, but
generally no earlier than, “the date that notice of the action” to modify
maintenance is given. Benn, 230 Wis. 2d at 313 & n.3 (discussing predecessor
statute).8 At the same time, § 767.59(1m) does not require a court to set the
effective dates of a modification that early; instead, the modification may be
prospective only. See Benn, 230 Wis. 2d at 306, 313-14 (concluding that it was

8
Maintenance modifications can be made effective yet earlier, but only to correct
“previous errors in calculations.” See WIS. STAT. § 767.59(1m).

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No. 2025AP558

not an erroneous exercise of discretion for the court to make reduced maintenance
effective as of the date on which the court ruled on modification).

¶35 David notes that Judge Horne, in denying his motion for
reconsideration, stated that “the objective evidence” before the court on remand
did not warrant setting modified maintenance at the amounts set in previous
orders. From this, David suggests that the court ended up ordering him to pay
amounts that the court itself viewed as unjustified by the evidence for the time
period leading up to the steps down in maintenance. More specifically, David
asserts that the result of Judge Horne’s starting date for the first step-down period
is that David is obligated to pay the $3,850 per month ordered by Judge Gonzalez
for the period October 2022–December 2024, even though Judge Horne
acknowledged that that number was not supported by the evidence. See note 7,
supra. But we do not construe Judge Horne’s comments this way. The court
merely acknowledged that it viewed the evidence concerning David’s income as
justifying eventually reaching a lower level of maintenance ($2,200) than that
ordered by Judge Gonzalez and by court commissioners. This does not stand for
the proposition that there was no evidence justifying the step-down transition to
that lower amount that the court settled on.

¶36 Explaining further, David is correct that one consequence of how
Judge Horne structured the order is that David is obligated to pay more, for the
period October 2022–December 2024, than what Judge Horne considered
appropriate for the final step-down, based on evidence that was available to Judge
Gonzalez in October 2022. But David does not provide support for the
proposition that Judge Horne was barred by statutory or case law from ordering
the payment of reduced maintenance prospectively, based on other factors relevant
to the fairness and support objectives of maintenance. This is the prospective

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No. 2025AP558

approach that the court decided to take. Judge Horne concluded that Ann’s
relatively great need, together with the sharp drop in her total income (including
maintenance) as a result of maintenance reductions, supported use of a step-down
structure that was retroactive to December 2024 and not earlier. As the court put it
at the reconsideration hearing, the court was concerned that, because of Ann’s
relatively greater need, it was necessary to give her time to “absorb” the reduction
in her income caused by dropping the amount of maintenance. David, in contrast,
had a relatively lesser level of need, due to his larger share of assets, which made
it easier for him to “absorb” the reduction in his income caused by his retirement.

¶37 David argues that the fact that he retired sometime in 2022, at least
two years before the December 2024 effective date, undermines the circuit court’s
rationale in starting its modified maintenance award in December 2024. David
emphasizes that Judge Damon in 1999 put Ann on notice that maintenance “may
be reviewed by the [c]ourt when [David] reaches an appropriate age of
retirement,” which the court at that point anticipated would be in or around 2012.
See Jahimiak, 410 Wis. 2d 557, ¶5 (second alteration in our 2023 Jahimiak
opinion). Judge Horne said that Judge Damon, in setting the original maintenance
award in 1999, made comments that “put all parties on notice” that David’s
maintenance obligation would be revisited upon David’s retirement. But Judge
Horne decided not to give significant weight to the precise date of retirement.
Instead, Judge Horne decided to use the step-down structure, retroactive to
December 2024, given that Ann had a greater financial need than David and given
“the substantial reduction” in Ann’s “household income” due to the significant
drop in the amount of maintenance she would receive each month. It was
reasonable for Judge Horne to acknowledge that, while Ann perhaps should have
long anticipated that a downward adjustment in maintenance might occur due to

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No. 2025AP558

David’s retirement, she would nonetheless need time to prepare for the particular
scale of the reduction that the court ultimately ordered. One contributing factor in
our conclusion on this point is the fact that uncertainty surrounding David’s
earning capacity, which was apparently not attributable to any action by Ann,
lingered throughout these proceedings, both before and after our decision in
Jahimiak and leading up to Judge Horne’s decision.

¶38 David characterizes the circuit court’s consideration of Ann’s need
and the scale of the maintenance reduction as “vague allusions” to the fairness and
support objectives. The circuit court’s discussion of its effective date and of its
use of the step-down structure was not extensive. But so far as David shows,
including taking into account his additional arguments that we reject below, it was
reasonable for the court to take Ann’s relative need and the scale of maintenance
reduction into account and to weigh them more heavily than other relevant factors.

III. Step-down Reductions in Maintenance

¶39 Related to his argument about the December 2024 start date, David
contends that Judge Horne erred in ordering that the reduced monthly maintenance
obligation be reached through the three steps, ending with a lowest level of $2,200
in 2026 and beyond. David notes that by January 2026, he will have been
obligated to pay more than $2,200 per month for over three years (October 2022–
January 2026). We do not understand David, in making this argument, to argue
that the circuit court violated any statutory provision or rule from case law using a
step-down structure to phase in the reductions over time. Nor does David suggest
that we should review the court’s decision to use a step-down structure under any
standard other than the familiar erroneous exercise of discretion standard for other
maintenance decisions. See Rohde-Giovanni, 269 Wis. 2d 598, ¶17.

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No. 2025AP558

¶40 Instead, David argues that Judge Horne failed to properly exercise
the court’s discretion in weighing the goals of support and fairness. In particular,
David emphasizes that the court’s use of a step-down structure results in Ann
receiving a substantially higher proportion of the parties’ collective income than
David receives until the final step down takes effect in January 2026.9 But this
result is consistent with Judge Horne’s determination that (1) a particular level
($2,200 per month) was appropriate based on the evidence before the court, while
at the same time (2) Ann’s greater need and fairness required a significantly lower
level of maintenance using the step-down structure. Put differently, David is
correct that the court’s approach temporarily imposed splits of income that favor
Ann, but David fails to show that the court’s reasoning for doing this was not one
reasonable way for the court to exercise its discretion, given the court’s
identification of legitimate considerations that favored its step-down structure and
the amounts that the court assigned to each step. Moreover, in creating the order,
Judge Horne explicitly weighed, out of fairness to David, the potential need to
compensate him for excess payments made from the effective date of the order
from December 1, 2024, through the date of the order in February 2025. This
consideration was smaller in scale than the effects of the court’s step-down
structure, but it reflects that the court was properly weighing fairness to David.

¶41 More generally, David asserts that the circuit court “completely
disregard[ed] that David did not have the earning capacity to pay the levels of

9
David calculates that the circuit court’s maintenance modification order following
remand gives Ann approximately the following shares of their collective incomes during the
pertinent phases: 63% for October 1, 2022–December 1, 2024; 60% for December 1, 2024–
July 1, 2025; 53% for July 1, 2025–December 31, 2025; and 49% for January 1, 2026, onward.
Ann does not appear to dispute these calculations on appeal.

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No. 2025AP558

support ordered.” See Rohde-Giovanni, 269 Wis. 2d 598, ¶29 (support objective
of maintenance must be considered “in accordance with the needs and earning
capacities of both the recipient spouse and the payor spouse”). We reject this
argument as undeveloped. David does not make clear what he uses as a factual
basis for this critique. For example, he fails to account for Judge Horne’s
imputation of income to David that we explain above. On a related point, David
emphasizes that his retirement resulted in a significant drop in his income. But the
court clearly took this into account in ordering a total maintenance obligation that
is significantly lower than what David was paying before the modification ordered
by Judge Horne.

¶42 David also asserts that there is “no evidence” that Ann at relevant
times would have a greater need than David—that is, less ability to “absorb”
changes in his income created by his retirement and the resulting modification to
maintenance—given the parties’ circumstances in 2022, or at least no need that
could justify her receiving a disproportionate share of their collective income.
This is not accurate. In Judge Horne’s written opinion, the court carefully walked
through the findings of the prior two judges in this case and weighed relevant
considerations regarding the parties’ circumstances from the time of their divorce
through 2022.

¶43 Expanding on that point, Judge Horne not only made findings of
income that should be imputed to David, as addressed separately above, but also
appeared to adopt the following findings of Judges Damon and Gonzalez: David
“made efforts to understate his income in an effort to affect the maintenance award
to [Ann]”; David’s “conduct had the effect of driving up costs of litigation for
[Ann]”; and based on “the resources [that David] devoted to litigation,” it could
reasonably be inferred that David “had greater assets at his disposal than may have

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No. 2025AP558

been apparent.” In light of these findings, David does not persuade us that Judge
Horne’s finding that Ann had a greater need is clearly erroneous.

¶44 David makes various references to what he alleges were Ann’s
failures to properly manage assets awarded to her by Judge Damon and funds that
David paid to her at the level of maintenance set by Judge Damon. See Jahimiak,
410 Wis. 2d 557, ¶58 n.12 (concluding that circuit court must consider David’s
argument that Ann “lacked initiative” as a potential factor in modifying
maintenance, but “tak[ing] no position on what the circuit court here might find
along these lines”). Judge Horne noted these allegations, but the court determined
that there was insufficient evidence in the record for the court make findings that
would attribute additional income to Ann. Instead, Judge Horne noted Judge
Damon’s finding that Ann could not become self-supporting and Judge Horne
further found that “this has not changed.” David briefly notes that in 1999 Judge
Damon found that Ann was paying for college courses even though this education
was not likely to result in her becoming self-sufficient. David also notes that Ann
conceded in an earlier appeal from this case in 2001 “that she had not wisely used
her liquid assets” from the divorce property division. See Jahimiak v. Jahimiak,
No. 2001AP0167, unpublished slip op., ¶7 n.2 (WI App July 6, 2001). But David
fails to develop a persuasive argument that Judge Horne needed to consider these
brief statements from earlier stages of this case as weighty. David falls well short
of showing that Judge Horne clearly erred in assessing the totality of Ann’s
management of assets from 1999 through 2022 as being adequate under the
circumstances.

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No. 2025AP558

IV. Indefinite Maintenance

¶45 David argues that Judge Horne erred in ordering that the final,
stepped-down amount of his maintenance obligation be indefinite. See Rohde-
Giovanni, 269 Wis. 2d 598, ¶17 (duration of maintenance committed to circuit
court’s discretion). It is difficult to track aspects of David’s argument on this issue
that we have not already rejected above. But at bottom we understand him to
contend that Judge Horne erred by interpreting Judge Damon’s order of indefinite
maintenance as prohibiting Judge Horne from ordering modified maintenance to
terminate after a definite term. We reject this argument because it rests on an
unreasonable interpretation of Judge Horne’s reasoning.

¶46 Judge Horne began discussion of the term of maintenance by
reviewing factual findings and procedural history relating to the original divorce
proceedings:

I am satisfied that Judge Damon envisioned that
there would be permanent maintenance. And he had
referred to [Ann]’s limitations, needs. And in his original
maintenance award, had made a determination that there
would be permanent maintenance.

He also understood that [David] at some point
would retire, he had envisioned that 65 would be a
reasonable retirement age, and had expressed an openness
to modify the maintenance when that event occurred.

David appears to interpret Judge Horne as characterizing Judge Damon’s award of
“permanent” maintenance to be unmodifiable. But this is belied by further
comments the court made, which provide important additional context:

I am inclined to order maintenance.… I’m viewing
my role as not redoing the divorce, but really looking at
what happened in the case before me. And if it makes
sense, adopting the rationale the previous judges have …
used. Judge Damon’s determination … was that

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No. 2025AP558

maintenance should be permanent and I haven’t seen
anything in the record that would dissuade me from that.

This reflects that Judge Horne made the modification determination based on the
totality of the circumstances reflected in the record established to that point, and
not because Judge Horne was under an erroneous belief that Judge Damon’s
determination could not be modified. Judge Horne expressed an understanding
that on remand the court was to decide to what degree Judge Damon’s reasoning
in setting an indefinite term still comported with the support and fairness
objectives of maintenance. Judge Horne decided that it did, and David fails to
show why that was an erroneous exercise of discretion.

CONCLUSION

¶47 For all of these reasons, we affirm the orders of the circuit court.

By the Court.—Orders affirmed.

Not recommended for publication in the official reports.

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