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[T] In re Marriage of Decker-Sidmore11/26/2003
243 (Ct. App. 1981). Here, the trial court could reasonably conclude that even if Barbara worked for minimum wage, $5.15 per hour, she would earn $10,300 per year. The record shows that Barbara's employment always paid in excess of the minimum wage. The question the trial court struggled with was not what income Barbara had earned in the past but what she reasonably could be expected to earn in the future. Common sense tells us that regardless of past performance, future support or maintenance will almost always be paid from future earnings. It is not irrational or unreasonable for the trial court to conclude that Barbara, who had worked for $6.00, $7.50, $9.00 and $10.00 per hour in the past year, would be able to earn $12,000 in the coming year. To do so, she would need to find work paying $6.00 per hour. She had never earned less. Barbara testified she was looking for full-time work and if there was a full-time job available, she would apply for it. The trial court was entitled to believe that Barbara could earn $12,000 in the coming year.
. We have dealt with the issue of future earnings before. In Finley v. Finley, 2002 WI App 144, , 256 Wis. 2d 508, 648 N.W.2d 536, we noted that a "court may consider a party's earning capacity rather than actual earnings when determining a party's obligation for maintenance and child support ." In Finley, the parties stipulated that the husband had averaged 624 hours per year moonlighting as an electrician. Despite this past history, the trial court refused to include income from moonlighting in its maintenance award, giving a number of reasons why the moonlighting might not continue in the future. We affirmed, concluding that future considerations permitted the trial court to set maintenance on expected future earnings.
. We sustained a maintenance award that tied maintenance payments to future earnings in Siker v. Siker, 225 Wis. 2d 522, 542, 593 N.W.2d 830 (Ct. App. 1999). We affirmed a no-maintenance award in Sellers v. Sellers, 201 Wis. 2d 578, 590, 549 N.W.2d 481 (Ct. App. 1996), in which the trial court used decreased future earnings as a reason not to award maintenance. These cases tell us that while present earnings can be a predictor of future earnings, it is the trial court's determination of future earnings that we examine for erroneous exercise of discretion.
. Barbara's attorney asked his expert witness to provide information based on three assumptions as to Barbara's income: No income, $12,000 per year income and $15,000 per year income. The expert did so. Kenneth introduced no evidence as to Barbara's income or earning capacity, leaving the trial court with only Barbara's expert's calculations which in turn were based on directions from Barbara's attorney. This left the trial court with precious little from which to craft a maintenance decision. The court did so by invoking waiver. It found that "Kenneth had failed to refute Barbara's maintenance calculations and did not introduce any evidence of his own as to the net after-tax disposable income that the parties would have as to any amounts of maintenance payments by [Kenneth] to [Barbara]."
. The trial court invoked waiver in order to reach a decision. While the evidence itself is sufficient to sustain the trial court's decision to assume a $12,000 per year income for Barbara, we also conclude that when Kenneth failed to provide evidence showing Barbara's earning capacity, the trial court could invoke waiver to make such a determination.
. Furthermore, the four-year duration of maintenance is sustainable as well. The trial court found that it would take Barbara three years to obtain her certification and complete her education because of the disc
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